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Funny Blog Item I Ran Across:

From Joe's Dartblog:

Unlike affirmative action, there seems to be no shortage of supremely justiciable cases on abortion. The South Dakota state house decided to create some today when it voted for a near-outright ban on the procedure. It passed 47-22 after an hour of debate. If the bill is passed by the senate in coming days, it will become prime fodder for a high court review of Roe. If the Roberts courts reverses the core of that decision, the ninth circle of Hell will incarnate as a four-winged black demon, swallowing the very essence of human goodness into its fiery maw the matter will be decided upon by each state's legislature.
Agree with it or not the merits, but it seems to me like an amusing little dig.

david (mail):
Doesn't he mean the ninth circuit of hell?
2.15.2006 2:48pm
BU2L (mail):

Doesn't he mean the ninth circuit of hell?


Zing!
2.15.2006 2:53pm
Mr Diablo:
Yes, and it will be really funny when after Roe is overturned, some woman who lives in South Dakota who wants to get an abortion finds herself unable to leave the state to do so because the legislature has also classified the fetus as a child, and has placed it (I mean, her) in protective custody and is forcing her not only to have a baby she does not want, but also to not have the freedom to move to a state with a less oppressive regime, despite the tired, unthinking conservative law student argument of "well, you can just move" anytime someone questions the insanity of federal law.

It's not like there's a clearly articulated right to travel. And since all of us who think that such a right would be clearly implied by a semi-flexible constitution are "idiots"... who are we really to argue with ignoring basic personal freedom whenever it suits our cause?
2.15.2006 2:56pm
Matt Tievsky (mail):
Mr. Diablo,

Though I find your scenario farfetched and would probably favor overturning Roe (in spite of my support for abortion rights), I think the real point being made is how the importance of Roe has been vastly blown out of proportion. Yes, the right to have an abortion is important, but I can think of many other rights that have at least as much weight. So it's amazing how much focus Roe in particular gets--so much so that, no matter what else a judicial nominee believes, his opposition to that decision is enough to make him unconfirmable and despised among much of the public.
2.15.2006 3:08pm
Justin (mail):
Unlike affirmative action, there seems to be no shortage of supremely justiciable cases on abortion. The South Dakota state house decided to create some today when it voted for a near-outright ban on the procedure. It passed 47-22 after an hour of debate. If the bill is passed by the senate in coming days, it will become prime fodder for a high court review of Roe. If the Roberts courts reverses the core of that decision, the ninth circle of Hell will incarnate as a four-winged black demon, swallowing the very essence of human goodness into its fiery maw the matter will be decided upon by each state's legislature. Republicans in Congress.

Or has somebody not read Raich?
2.15.2006 3:13pm
George Gregg (mail):
Overturning Roe will never happen. If it did, the Republicans could kiss being a viable political party goodbye for the next 30 years. They know that, too.

Instead, look for conservative judges/justices to simply hollow out Roe bit by bit by until it's a meaningless precedent.
2.15.2006 3:29pm
Grant Gould (mail):
Justin's point is an important one and should not be lost. Outside of a few federalist bloggers, nobody actually beleives that abortion will ever be decided at the state level. The Republicans would rather forbid it at the federal level just as the left has kept it stopped at the federal level.

This notion of devolving important issues like abortion to the states is a quaint fantasy that the right used to use to keep a few libertarian-types on, but not even the right believes it any more. The federal "partial-birth abortion" law quite adequately demonstrated that the Republicans intend abortion to be a federal, not a state issue.
2.15.2006 3:37pm
Nobody (mail):
I was about to post essentially the same thing Justin posted, but he beat me too it. Where did the myth arise that overturning Roe would leave abortion to the states?
2.15.2006 3:38pm
eponymous coward (mail):
Or has somebody not read Raich?

Exactly. If paying for a medical procedure (abortion) isn't commerce that can be regulated by Congress, what is?
2.15.2006 3:38pm
Mr Diablo:
You're right George, they probably won't overturn it, they'll just pass lots of laws and slowly shift the test from undue burden to "super-duper burden."

Matt, a lot of laws doing just what I said have been rejected by courts at various levels because of Roe and that murky right to travel. If the court an undo one, they can undo the other, and then what will prevent Utah from declaring that seconds old fetuses are people and that therefore there is a state inerest in protecting that fetus? I worry that my far-fetched scenario might not be that far-fetched. If we let Roe and the right to travel be carved up so that states can do this, we'll see plenty more court cases, not fewer, and we'll be admittin that we don't really have a country, just 50 states.

I usually hate slippery slope stuff, but we might be approaching a Dred Scott for pregnant women case in the not so distant future.
2.15.2006 3:40pm
Chico's Bail Bonds (mail):
I can't wait until we find out how a fetus is in interstate commerce.
2.15.2006 3:51pm
Guest2 (mail):
I'm going to go out on a limb and speculate that quite a few posters here (in addition to me) would like the US to return to being "just 50 states."
2.15.2006 3:57pm
mj (mail):
"And since all of us who think that such a right would be clearly implied by a semi-flexible constitution are "idiots"... who are we really to argue with ignoring basic personal freedom whenever it suits our cause?"

Well, it's about time liberals paid for writing the tenth amendment out of existence. When you care enough about rights to give up everything you've brought under government control be sure to let us know. Until then I'm pretty sure my sympathy card is lost.
2.15.2006 3:58pm
tefta (mail):
George's comment above that overthrowing Roe vs. Wade would set Republicans back thirty years is being unduly optimistic. It would send us into oblivion.

I think there will be far fewer abortions if we legalize the morning after pill, close down the abortion clinics and make abortion a private medical matter. That's about the best we can hope for.
2.15.2006 4:16pm
CEB:
As much as I think that abortion law should be handled by the states, there is no doubt in my mind that if Roe &Casey are overturned, Congressional Republicans will abandon any federalist ideals (if they had them to begin with) and outlaw or drastically limit abortion at the national level. The Supreme Court, following Perez &Raich, will uphold it. (assuming that abortion is regarded as a medical procedure, &medical procedures are a part of the class of activites regulated by Congress, and all that) The real question, in my mind, is whether laws prohibiting abortion will be repealed &reenacted &re-repealed every time there is a change of the majority party in Congress.
2.15.2006 4:18pm
JosephSlater (mail):
Would it be equally funny to exaggerate/mock the level of hyperbole by some folks in reaction to Kelo?
2.15.2006 4:18pm
Taimyoboi:
"Where did the myth arise that overturning Roe would leave abortion to the states?"

Nobody,

Are you suggesting that overturning Roe would automatically imply that abortion is unconstitutional? Or simply that the federal gov't would step in and outlaw it?
2.15.2006 4:18pm
A.S.:
<i>Republicans in Congress</i>

There are 60 pro-life Republican Senators? Since when?
2.15.2006 4:22pm
Guest2 (mail):
Would it be equally funny to exaggerate/mock the level of hyperbole by some folks in reaction to Kelo?

You betcha.
2.15.2006 4:25pm
Nobody (mail):
Taimyobol: the latter
2.15.2006 4:25pm
eponymous coward (mail):
I'm going to go out on a limb and speculate that quite a few posters here (in addition to me) would like the US to return to being "just 50 states."

Blame those idiots in 1787 who thought that the Articles of Confederation might not exactly be heaven on earth.

I can't wait until we find out how a fetus is in interstate commerce.

It isn't, but unless a medical procedure that is paid for (and might be covered under insurance and bring ERISA into it, for instance), most certainly is commerce. This isn't something like the dissents in Lopez or majority opinion in Raich, where you have to squint REAL hard while looking at the Rorschach blot to make out where the Commerce Clause comes into play.
2.15.2006 4:26pm
Nobody (mail):
Tefta said:

I think there will be far fewer abortions if we legalize the morning after pill, close down the abortion clinics and make abortion a private medical matter. That's about the best we can hope for.


Why close down the clinics? So only wealthy women can get abortions?
2.15.2006 4:27pm
Nobody (mail):
Also, Tefta, the morning after pill is already legal. It's just not available over the counter (due to political appointees at the FDA overruling the professional staff recommendation).
2.15.2006 4:30pm
Clayton E. Cramer (mail) (www):

Overturning Roe will never happen. If it did, the Republicans could kiss being a viable political party goodbye for the next 30 years. They know that, too.

Instead, look for conservative judges/justices to simply hollow out Roe bit by bit by until it's a meaningless precedent.
And you thereby make the point that Professor Volokh was trying for.

1. If there is this strong majority in favor of abortion on demand, how will overturning Roe injure the Republican Party? Overturning Roe returns the question back to the states, who had complete authority on this matter until 1973.

Some states, like California, will remain unchanged. Indeed, California is more liberal on abortion than Roe requires.

Some states, where abortion has never been popular, will try to completely ban it, as South Dakota seems intent on doing. (Politically dumb to pass such an extreme law, and bad tactics, because it makes it easy for wobbly judges who might be repelled by the current state of things to uphold Roe.)

Most states, however, will adopt somewhat more restrictive laws than current, because most Americans want abortion legal, but discouraged. They want third-trimester abortions severely limited (and not just because, "I changed my mind again!"). There is genuine horror--even among many who are pro-choice--at partial birth abortion.
2.15.2006 4:31pm
Guest2 (mail):
Blame those idiots in 1787 who thought that the Articles of Confederation might not exactly be heaven on earth.

The problem was that not enough of those idiots foresaw what the commerce power and executive would evolve into.
2.15.2006 4:34pm
Nobody (mail):
Mr Cramer ignores the above discussion of the likelihood of a Republican Congress stepping in and banning abortion.
2.15.2006 4:35pm
Taimyoboi:
"(due to political appointees at the FDA overruling the professional staff recommendation)."

Mr. Nobody,

I think you're giving short shrift to the number of deaths related to the use of RU-486.
2.15.2006 4:41pm
JohnAnnArbor:
I usually hate slippery slope stuff, but we might be approaching a Dred Scott for pregnant women case in the not so distant future.

The Dred Scott case depended on him being ruled property, not a person.

Kind of how the Roe case depended on the baby being ruled non-human.
2.15.2006 4:42pm
Cornellian (mail):
Congressional Republicans who were willing to vote for the Terry Schiavo law will have no hesitation in concluding that abortion is really an issue for the federal government to decide. Heck they try to restrict abortion now.
2.15.2006 4:51pm
Allen Asch (mail) (www):
There are also several states that still have laws on the books banning abortion that could easily be revived if Roe-Casey-(Griswold?) were overturned. See, e.g., this link:

Thirty states ready to ban abortion if Roe overturned

Allen Asch
2.15.2006 4:54pm
A.S.:
Mr Cramer ignores the above discussion of the likelihood of a Republican Congress stepping in and banning abortion.

Since it would take 60 pro-life Republican votes to "ban" abortion, that likelihood is exactly zero.
2.15.2006 4:55pm
Nobody (mail):

I think you're giving short shrift to the number of deaths related to the use of RU-486.


Not at all--simply noting that the professional staff of the FDA made a recommendation, and the political appointees overruled it. To the extent that (1) RU-486 has caused deaths and (2) such deaths are significant and (3) such deaths have anything to do with the safety and efficacy of Plan B, is there any reason to believe that the political appointees were working with better data than the professional staff? Or that they analyzed the data in a more correct way? Or is it more likely that the political appointees overruled the staff for political reasons?
2.15.2006 4:57pm
keatssycamore (mail) (www):
Most commentators here seem to get the fact that overturning Roe and so that the states make the decisions is not a realistic conclusion to the abortion battle. Anyone think that a hypothetical Kansas pro-life couple will be satisfied that Jayhawk babies are ostensibly protected from being murdered, but not care about those useless California fetuses? This is the phoniest argument Republican politicians make with respect to Roe.

I think that CEB has it right above regarding Roe being overturned where he states, "The real question, in my mind, is whether laws prohibiting abortion will be repealed &reenacted &re-repealed every time there is a change of the majority party in Congress."

This is why I think if you are a politician and you think Roe is wrong you should be advocating for a Constitutional amendment. Then the problem would be forever solved and you could quit whining about the Supreme Court's grasp on the Constitution. That's the political solution to the problem, isn't it? Just change it, or shut up.

Which is why I didn't understand this question from A.S. "Republicans in Congress

There are 60 pro-life Republican Senators? Since when?"

Why would they need 60 if Roe is overturned? Wouldn't they just need a simple majority of both houses and a President who won't veto?
2.15.2006 4:58pm
Nobody (mail):
Since it would take 60 pro-life Republican votes to "ban" abortion, that likelihood is exactly zero.

Wouldn't need to be 60 pro-life Republicans. "Pro-life" senators like Harry Reid and Bobby Casey (assuming he's elected) might throw their votes behind the bill too.
2.15.2006 4:59pm
Taimyoboi:
"will have no hesitation in concluding that abortion is really an issue for the federal government to decide."

Given that a number of posters have it on good authority that the Republican party would be consigned to the dustbin of history if the pro-life movement ever succeeded, I find it hard to believe that the Republican party would be willing to commit political suicide.

Unless of course you subscribe to the "conservatives-are- too-stupid-to-know- what's-for-their-own-good" movement.

I think it more likely that, recognizing the impossibility of gaining a filibuster proof majority to ban it federally, Congressional and Senate republicans will probably pass the ball to the states.
2.15.2006 4:59pm
respondent:
taimyoboi,
The morning after pill is different from RU-486. To the best of my knowledge there haven't been any deaths as a result of using the morning after pill.
2.15.2006 5:02pm
A.S.:
"Pro-life" senators like Harry Reid

That's almost certainly a myth. The chance that Harry Reid would vote for cloture on a bill to ban abortion is zero.
2.15.2006 5:02pm
A.S.:
Why would they need 60 if Roe is overturned?

Obviously, a bill to ban abortion would be filibustered.
2.15.2006 5:03pm
Taimyoboi:
"that the political appointees were working with better data than the professional staff? Or that they analyzed the data in a more correct way? Or is it more likely that the political appointees overruled the staff for political reasons?"

Or is it also possible that merely lableing one group the professionals and one group the political appointees doesn't necessarily make the former's opinion solely professional or the latter's solely political?

I honestly don't have insight into the minds of either group, but have seen a number of death reports related to RU-486.

I merely raised a question...
2.15.2006 5:03pm
Taimyoboi:
Respondent,

If that's the case, than I withdraw my original statement.
2.15.2006 5:04pm
keatssycamore (mail) (www):
A.S. says, "Mr Cramer ignores the above discussion of the likelihood of a Republican Congress stepping in and banning abortion.

Since it would take 60 pro-life Republican votes to "ban" abortion, that likelihood is exactly zero."

Why? If Roe is overturned, why 60? Or am I missing something obvious and looking like an idiot? Wait a minute A.S., I am an IDIOT. I think I just 'got it'. It's the filibuster, isn't it?

Imagine the 'nuclear option' in that scenario!
2.15.2006 5:04pm
Taeyoung (mail):

Most states, however, will adopt somewhat more restrictive laws than current, because most Americans want abortion legal, but discouraged. They want third-trimester abortions severely limited (and not just because, "I changed my mind again!"). There is genuine horror--even among many who are pro-choice--at partial birth abortion.


This sounds correct to me. I would also add that the political effects of a reversal of Roe v. Wade are heavily dependent on when, in the electoral cycle, such a decision comes down. The ideal time for Republicans, I think, would be in the months immediately after an off-cycle election (I think that's what they call it when there's no Presidencies on the line, right?). That gives them a year and a half in which the public gradually comes to the realisation that, shockingly, overturning Roe v. Wade has little to no practical effect on abortion in their states, and also a year and a half in which the pro-abortion activists scream themselves hoarse enough that the public ignores them the next election cycle.

The ideal time for the Democrats, on the other hand, would be in the month before a Presidential election. They could, under such circumstances, reasonably expect to sweep the House, reclaim the Presidency, and possibly build up a sizeable majority in the Senate. Any attempts by Republicans to explain to the public that Roe v. Wade does not, in fact, say what people seem to think it says, and that overturning it does not, in fact, carry the consequences the screamers say it does would fall on deaf ears. Exultant pro-lifers crying "God is Great!" and firing guns into the air would not exactly help their cause either.
2.15.2006 5:07pm
keatssycamore (mail) (www):
A.S.

That last part was a little joke to try to obscure my stupidty. Did it work?
2.15.2006 5:07pm
CEB:
A question: The major Commerce Clause decisions, if I remember correctly, are mostly about the creation or sale of a fungible product. The Supreme Court did distinguish between manufacturing &selling, holding that the former was not within the CC power. (forgot what case that was) Has the SC ruled on whether providing a service for a fee (which is what abortion is) is "commerce" under the CC?
2.15.2006 5:08pm
A.S.:
Imagine the 'nuclear option' in that scenario!

But Republicans have repeatedly said that the nuclear option -- sorry, Constitutional Option -- is for judges only.

Sorry.
2.15.2006 5:09pm
A.S.:
Did it work?

I tend to find that jokes don't work in comment threads. Or maybe I just am humorless.
2.15.2006 5:10pm
farmer56 (mail):
Please;

All. In the years since Roe. Not a single elected member of congress has offered a bill to codify Roe. "Every female is to have availible to them an abortion if they desire." See? Simple. Not even a Fienstien or Kennedy have a spine to do that. To Codify into law that has already been deemed a 'right' by the Supremes. Wounder why? Suppose maybe the rest of the dems would hit them in the back of head and stuff them in a trunk by forcing a roll call Vote? What is the danger of authoring a law that removes the court for the abortion issue? I'll tell you. No politician wants to do anything about it. Neither side is willing to take a side. Mostly Democrats can not sit on the fence at home with a recorded vote.
2.15.2006 5:11pm
Tester (mail):
test
2.15.2006 5:12pm
Justin (mail):
AS I'll buy your argument if you buy mine:

That's almost certainly a myth. The chance that Olympia Snowe would vote against cloture on a bill to ban abortion is zero.
2.15.2006 5:17pm
Allen Asch (mail) (www):
By the way, the link I provided in my previous post includes this list:

The 21 states considered at high risk of banning abortion were: Alabama, Arkansas, Colorado, Delaware, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Texas, Utah, Virginia and Wisconsin.

The nine at middle risk: Arizona, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, New Hampshire and Pennsylvania.

The 20 at lower risk: Alaska, California, Connecticut, Florida, Hawaii, Maine, Maryland, Massachusetts, Minnesota, Montana, Nevada, New Jersey, New Mexico, New York, Oregon, Tennessee, Vermont, Washington, West Virginia and Wyoming.

Interesting list...

Allen Asch
2.15.2006 5:22pm
A.S.:
Sorry, Justin, can't do it.

BTW - what is the evidence that Reid is pro-choice? I keep hearing it, but have never seen anything supporting it.
2.15.2006 5:24pm
CEB:
(after 30 seconds of research) the manufacturing/selling case (E.C. White v. U.S.) is old and busted, as they say on Fark, and regulating abortion seems well within the CC power as currently interpreted.
2.15.2006 5:24pm
Elais:
Taeyoung,

Pro-abortion? I'm pro choice not pro-abortion. There is a difference.
2.15.2006 5:30pm
A.S.:
Whoops, my question above was meant to ask: what is the evidence that Reid is pro-life?
2.15.2006 5:35pm
DJB:
As much as I think that abortion law should be handled by the states, there is no doubt in my mind that if Roe &Casey are overturned, Congressional Republicans will abandon any federalist ideals (if they had them to begin with) and outlaw or drastically limit abortion at the national level.

How do people think that Congressional Republicans will be able to do this? Setting aside the fact that a legitimate threat to abortion would be a boon for the Democrats -- and thus lead to fewer Republicans in Congress -- it is still a fact that the Republicans would need a filibuster-proof 60-vote supermajority in the Senate to push through an abortion ban. They don't have one. It is highly doubtful that they would even have a simple majority in favor of such a ban, given that some of the Republicans in the Senate are pro-choice and none of the pro-life Democrats would dare back the Republicans on this one.

Even if Republicans don't truly believe in federalism, they are on record as supporting it. Plenty of Republican Congresscritters will use that as their excuse for punting on the abortion issue and letting people at the state level deal with that political hot potato.
2.15.2006 5:46pm
Taeyoung (mail):
Re: Elais

Fair enough -- you can call yourself what you like. But the most committed (and most influential) activists are not pro-choice, but pro-abortion, and object strongly even to laws that do not take the choice away from the woman, but merely have the effect of inclining a woman's choice away from abortion, e.g. by requiring that doctors provide information about what will happen to the fetus during the procedure, or requiring that the aborting woman/girl tell her husband or parents that she is going to have an abortion. And it is these activists who will be the ones out there setting the tone of the discourse in the wake of any overturn of Roe v. Wade.
2.15.2006 5:56pm
Unnamed Co-Conspirator:
So, why all the handwringing over the possibility that there might be legislative restrictions on abortion? It's not as if a legislative policy decision can't be changed by a subsequent legislative decision, much unlike a policy decision made by the Supreme Court and dressed up as if it's an interpretation of a Constitutional provision.

You know, ordinary people (the kind who do productive work for a living) might not revile you lawyers so much if you didn't spend so much time trying to manipulate the rules to exclude reasonably held but differing viewpoints from consideration in the forums in which public policy decisions are normally made (you know, legislatures). Still, you persist in attempting to remove matters from accountable legislative bodies to unaccountable judicial tyrants, scorning good faith compromise, preferring instead the all or nothing, and often arbitrary, results offered by judicial resolution of supposed constitutional issues. You lawyers are probably the only people who fail to understand that legitimacy of policy doesn't depend on a judge's decree, but on the opportunity for participation in the policy-making process. That's why even people who disagree with laws passed by legislatures still hold a deep commitment to accept them as binding. That commitment runs shallow, if at all, where policy is adopted by judicial fatwah, except perhaps among lawyers. A pox on all of you.
2.15.2006 6:01pm
Steve:
That last comment could have been written after Brown v. Board of Education was decided. Things haven't changed much in 50 years.
2.15.2006 6:07pm
SimonD (www):
Justin:
AS I'll buy your argument if you buy mine: That's almost certainly a myth. The chance that Olympia Snowe would vote against cloture on a bill to ban abortion is zero.
On a bill to outright ban it, I agree. However, being that Snowe is far more sensible than most of the pro-choice lobby, I think she is more amenable to bills that place sensible restrictions on access, and I think she is also keenly appreciative that there is a difference between a cloture vote and a final vote (hence, voted to invoke cloture on Pryor nomination, June 8, 2005 (but, voted no on confirming Pryor nomination), so I think she might vote for cloture even on a bill she'd vote no on.

My own view, honestly, is that I really do mean it when I say the matter is one for the states, and I really do mean that's where it should be resolved. For reasons explained here, I remain deeply sceptical about the Constitutionality of the Federal ban, not because of a lack of adequate exceptions (as the ninth circuit found, and as this brief seems mainly premised on), but on the basis that the act is ultra vires, and this brief does nothing to convince me otherwise, since it continues to proceed on the assumption that Congress had the authority to pass the statute in the first place, which is precisely what I doubt. Our Hero has said:
[I]f a state were to permit abortion on demand, I would and could in good conscience vote against an attempt to invalidate that law, for the same reason that I vote against invalidation of laws that contradict Roe v. Wade; namely, simply because the Constitution gives the federal government and, hence, me no power over the matter.
I agree - and if the Court grants cert, we will find out if Justice Scalia has changed his mind.
2.15.2006 6:49pm
SimonD (www):
How do people think that Congressional Republicans will be able to do this? Setting aside the fact that a legitimate threat to abortion would be a boon for the Democrats -- and thus lead to fewer Republicans in Congress -- it is still a fact that the Republicans would need a filibuster-proof 60-vote supermajority in the Senate to push through an abortion ban. They don't have one. It is highly doubtful that they would even have a simple majority in favor of such a ban, given that some of the Republicans in the Senate are pro-choice and none of the pro-life Democrats would dare back the Republicans on this one.
Not to mention, as I've pointed out before (see Trying to have it both ways on abortion, 10/12/05), us benighted pro-life anti-Roe people are a minority, remember? NARAL et al like to sell themselves as representing the will of the majority. So even if Congress did pass such a law (which it won't) and even if SCOTUS upheld it (which it shouldn't), at the next election, the aggreived pro-choice majority in this country will throw out all the Republican members of Congress and replace them with legislators who will repeal the law. I realize this must sound messy - worse yet, like hard work - to out democratic friends, compared to just having a judge do it for them, but it does at least have the virtue of being democratic and constitutionally legitimate, unlike the present regime. You can't have it both ways - either there is a majority in this country for choice, in which case you don't need Roe, or there isn't, in which case, it's a dead duck anyway.
2.15.2006 6:59pm
JDK:
So if I understand the pro-choice position above, Roe should not be overturned because...

a democratic process would yeild undesirable results?
2.15.2006 7:26pm
dk35 (mail):
I have to admit, I don't see what was funny about the blog post that Eugene is referring to. Perhaps he could explain what is so funny about it.
2.15.2006 7:26pm
Mr Diablo:
Yes, and when a state declares a fetus to be a person with certain rights, watch the additional laws be passed and watch this whole debate blow up into an entirely new world of litigation.

Roe won't end the litigation. And to anyone who thinks that it might be a stretch for Congress to get involved and declare fetuses to be commerce, don't be so naive. If they think they can ban third-trimester abortions at a federal level...

...and also, why wouldn't a GOP Senate pull out the nuclear option on this issue as well? One arbitrary rationale to eliminate the filibuster seems as good as another.
2.15.2006 7:29pm
SimonD (www):
Sorry, the second paragraph of my first post above doesn't make much much sense because I pasted it verbatim from a comment I added at SCOTUSblog earlier. The brief it refers to is a new brief from the SG in Gonzales v. Carhart, available here.
2.15.2006 7:29pm
eponymous coward (mail):
Of course, you COULD argue that a fetus is a person covered under the 14th Amendment of the US Constitution and thus subject to the protections any person has.

Like the Republican Party does.

http://www.fair.org/index.php?page=1362

I'm pretty sure you could even write up a nice judicial opinion justifying it.

It would be interesting to see death penalty prosecutions for abortion providers and mothers, huh?
2.15.2006 7:32pm
Nobody (mail):
For evidence that Reid is "pro-life," you can start here

http://www.issues2000.org/Social/Harry_Reid_Abortion.htm
2.15.2006 7:34pm
Taeyoung J. (mail):

I'm pretty sure you could even write up a nice judicial opinion justifying it.


Yes, the argument is clear, but it's only slightly less embarassing, as a piece of legal reasoning, than Roe v. Wade. My hope would be that Thomas, at least, would not go for that kind of loose interpretation of the Constitutional text -- historically, "person" would not have been understood to cover a fetus in the Reconstruction period. People only identified the fetus with personhood subsequently (is my understanding), with the advance of our medical knowledge. Scalia probably wouldn't go for the argument either. On the other hand, who knows? Maybe a Harriet Miers would have done -- that's part of how she was being sold, at any rate. Roberts and Alito are less clear, and we know the opinions of the other judges with respect to fetal personhood. It would have to be a very different court for that to be a winning argument.
2.15.2006 7:40pm
Taeyoung J. (mail):
On the other hand, the wonderful thing about setting abortion policy in the Supreme Court is that our opinions count for absolutely nothing either way.

Except to the extent, I suppose, that judges are afraid they'll be lynched for their decisions.
2.15.2006 7:42pm
tefta (mail):
If abortions weren't so cheap and available, women would be more interested in contraception and they wouldn't need to be aborted. The only "rich people" argument is pretty old and decrepit now. Doncha think you should stop getting your talking points from Ted Kennedy. Give that one a rest.

The fact is the vast majority of abortions are performed because the putative mom and dad didn't bother with birth control, not to save a women's life, not because the woman was raped.

It's a disgrace.
2.15.2006 7:42pm
SimonD (www):
...and also, why wouldn't a GOP Senate pull out the nuclear option on this issue as well? One arbitrary rationale to eliminate the filibuster seems as good as another.
I agree. At the moment, the idea is that the legislative filibuster isn't on the table, but that's duplicitous. The underlying reason is an appeal to the expectations of the framers that votes on Presidential nominees would be by majority vote, and that this appeal to some atextual authority is sufficient to trump Art. I §5 - but what constrains that logic? Once you go down the road of elevating things above the text - intentions, purpose, expectations, what have you - where's the stop sign? It seems to me that if the argument is that the framers expected executive business to be done by majority vote, what's so hard about extending that to say that they expected all legislative business to be done by majority vote, and that's therefore enough to render rules properly made under §5 unconstitutional. Which is ridiculous, of course, because §5 explicitly says otherwise (see The rules and procedings clause: what it holds for judicial filibusters, 1/25/06), but hey - if we're in for a dime of this flexible, living constitution nonsense, we're in for a dollar. Sooner or later, either the GOP or the Dems will pull the trigger and do away with the filibuster, because sooner or later, every entrenched majority gets arrogant and looks around for ways to release itself from the restraints on its power, which I suspect is what John Eastman had in mind when he wrote this.
2.15.2006 7:51pm
eponymous coward (mail):
My hope would be that Thomas, at least, would not go for that kind of loose interpretation of the Constitutional text -- historically, "person" would not have been understood to cover a fetus in the Reconstruction period.

Maybe, maybe not. Texas enacted their original criminal statute (the one overturned in Roe) regarding abortion in 1854- so making an argument that it was commonly understood during Reconstruction times that a fetus was a person doesn't sound TOO farfetched. Rehnquist's dissent notes that a LOT of state acts regarding abortion were enacted from 1820-1870.
2.15.2006 7:54pm
SimonD (www):
Tefta:
The only "rich people" argument is pretty old and decrepit now.
It's their dead horse, and they can beat it if they want.

(More to the point, if Democrats didn't confine their abortion debate entirely to tin-eared repetition of spurious old chestuts that have been ringing hollow for years, they might actually go out and get some new lines of attack that might make them moore headway. If the opposition wants to be counterproductive, let them get on with it!)
2.15.2006 7:56pm
Nobody (mail):
Tefta:


The only "rich people" argument is pretty old and decrepit now.


You're the one who brought it up. You suggested that "abortion clinics" should be closed and abortion should be made a "private medical matter." The only effect this would have would be to make abortion more expensive. Was there another effect you had in mind? I take talking points from no one, and I don't see what Senator Kennedy has to do with this. You may say that it's old news that poor people are poor, but it's still news as long as they remain poor.

The argument, discussed elsewhere above, that even if congress bans abortion a later congress can re-legalize it, is beside the point. What about the women who will die in the meantime? What about the women who will be forced to give birth against their will? What about the children who will be born unwanted? Will they grow up in a healthy environment? Not likely.
2.15.2006 8:04pm
Taeyoung J. (mail):

Maybe, maybe not. Texas enacted their original criminal statute (the one overturned in Roe) regarding abortion in 1854- so making an argument that it was commonly understood during Reconstruction times that a fetus was a person doesn't sound TOO farfetched. Rehnquist's dissent notes that a LOT of state acts regarding abortion were enacted from 1820-1870.


Fair enough. I don't know at what point it really sank in that the fetus is present as a developing baby from conception. I'm sure we've understood that intellectually since ancient times, but I suspect the shift away from the earlier "quickening" standard was the result of some advance in our understanding of fetal development, and an appreciation that the fetus was living tissue well before the point of quickening.

Or, I suppose, it may well have been an evolution in our morality. I don't know the history of the period well enough to say -- or even to identify the sources that would tell me.

That said, I still think it is a stretch to argue that the public meaning of the phrase, at the time, would have encompassed a developing fetus.
2.15.2006 8:13pm
SimonD (www):
eponymous coward:
Of course, you COULD argue that a fetus is a person covered under the 14th Amendment of the US Constitution and thus subject to the protections any person has. Like the Republican Party does: http://www.fair.org/index.php?page=1362
You are aware that the GOP platform referred to in that link is almost a decade old? It's Bob Dole's platform. I have no idea if FAIR's article is right, but here's what the 2004 platform has to say about it:
We support a human life amendment to the Constitution and we endorse legislation to make it clear that the Fourteenth Amendment's protections apply to unborn children.
That seems to me a tacit admission that those protections do not extend to unborn children now. While it is a well-rehearsed fact that abortion was illegal in most states when the 14th Amendment was ratified, this is a very different proposition to saying that unborn children were considered persons at that time; demonstrating that they were is a prerequisite of extending the Fourteenth Amendment's protections to the unborn. Brother Nino's been looking for twenty years, Brother Clarence isn't that far behind, and so far, seems to me that they ain't found squat.
2.15.2006 8:17pm
Taeyoung J. (mail):

legislation to make it clear that the Fourteenth Amendment's protections apply to unborn children.

SimonD, I think you're reading this wrong. If it is legislation to make clear something in the Constitution, I think that means they think it's in there already, just unclear.
2.15.2006 8:28pm
SimonD (www):
Taeyoung, J. (quoting eponymous coward):
Texas enacted their original criminal statute . . . regarding abortion in 1854 - so making an argument that it was commonly understood during Reconstruction times that a fetus was a person doesn't sound TOO farfetched. Rehnquist's dissent notes that a LOT of state acts regarding abortion were enacted from 1820-1870 . . . I don't know at what point it really sank in that the fetus is present as a developing baby from conception. I'm sure we've understood that intellectually since ancient times, but I suspect the shift away from the earlier "quickening" standard was the result of some advance in our understanding of fetal development, and an appreciation that the fetus was living tissue well before the point of quickening.
This is more-or-less the point I tried to get at (inartfully) in my previous post. The argument advanced by JUSTICE TAEJONG and APONYMOUS COWARD is, in essence, that states passing anti-abortion laws beginning in the middle of the 19th century is reliable indicia of the evolution of a consensus that the fœtus; is a child whose life must be protected, a consensus reached adequately far in advance of the passage of the 14th Amendment that its protections extend to a child in utero. But this is a glaring non sequitur, because it presumes that the only motive that a state might have for criminalizing abortion is out of regard for fœtal life, a proposition that is dubious at best, and demands further evidence. I have previously averred (see Finding compromise on abortion, 2/8/2006, PDF at pp.2-4) (Dodd, J., dissenting) that fœtal life is the only reason I consider valid for enacting such laws, but it does not seem to me to be a proven proposition that just because states banned abortion in the 19th Century they did so - prima facie or in reality - out of concern for the immediate life of the unborn.
2.15.2006 8:32pm
SimonD (www):
If it is legislation to make clear something in the Constitution, I think that means they think it's in there already, just unclear.
Wouldn't that be rather like having an amendment to remedy Kelo - perhaps one that said that private property can only be taken for public use on payment of just compensation? ;)

I mean, I could be reading it wrong. It wouldn't be the only thing I disagreed with in that document, I just wanted to point out that it's laziness to cite a report about a document of limited lifetime when the current one DOES exist and is easily findable.
2.15.2006 8:34pm
bluecollarguy:
Simon,

Brother Clarence: "Nothing in our Federal Constitution deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother. Although a State may permit abortion, nothing in the Constitution dictates that a State must do so." Stenberg

Brother Nino has said the same thing many times. Their position is simple, the Constitution is silent on abortion, the 10th kicks in and Roe, Doe and the rest are kicked out.
2.15.2006 9:00pm
SimonD (www):
bluecollarguy: yes, that's exactly what I'm saying. If a state wants to prohibit abortion, it may do so; if it wants to legalize it, it may do so. If you were offering that in rebuttal of anything I've said in this thread, I think you may be gravely misunderstanding my perspective.
2.15.2006 9:17pm
therut:
I watched on c-span some of those scientific people at the FDA (rolls eyes) It consited of a "scientist" who resigned over the matter. Boy was she a political partisian. She said along with the other pro-femenist/abortion people on the show with her that they needed to reword the argument. State that Plan B is "birth control" and the citizens would accept that. Here is the problem I have as a physician with Plan B, BC pills, IUD's. I have had many female patients that do not realize that IUD's work by producing an aboriton, the the pill maybe works this way sometimes, that Plan B probably works this way somewhere between30-40% of the time. I think women should have to be given this information which they are not alot of the time. One patient was in tears when I explained to her how an IUD worked as she had previously had one for years and was thinking about one again. I thought it was unethical what had been done to her. I did not know she had used an IUD before. If I had what ethically should I have told her? Like I said she was really, really upset as it was against her belief to have an abortion. If the abortion rights people would just show a little understanding of womens feelings that disagree with abortion they might get more support. As it is they come across as uncaring. Have you ever seen one of them smile? They are always screeching and frowning. They sometimes try but it looks strained and fake.
2.15.2006 9:59pm
jgshapiro (mail):
I wonder what would happen if someone in Congress proposed a constitutional amendment that overturned Roe but also prohibited Congress from making abortion policy -- essentially taking the federal government out of the equation entirely and requiring it to be left to the states?

How many votes could such an amendment get in the Senate? Each side has something to gain and each side has something to lose.

Has this ever been proposed in Congress?
2.15.2006 9:59pm
Niels Jackson (mail):
I'm still waiting for some enterprising poster to attempt to reconcile the following points made above:

1. Overturning Roe would be a nightmare for the Republican Party, because it would send voters flocking to the Democrats.

2. Even so, right after Roe is overturned, congressional Republicans would still think it is a great idea to pass a nationwide ban on abortion.
2.15.2006 10:13pm
MarkW (mail):
That seems to me a tacit admission that those protections do not extend to unborn children now.

SimonD, if the platform called for an amendment rather than legislation, I'd say you were right. The fact that they call for the latter suggests, however, a belief that the fetus already has 14th Amendment rights.
2.15.2006 10:25pm
Reg (mail):
If a sizable number pro-choicers want to hold on to Roe only because they are scared of a national abortion ban by Republicans in Congress, a compromise could easily be reached. An amendment to the Constitution clearly stripping from Congress all power to regulate abortion and leaving it entirely to the states would reestablish the correct constitutional result and be in line with most Americans' preferences.
2.15.2006 10:26pm
SimonD (www):
I wonder what would happen if someone in Congress proposed a constitutional amendment that overturned Roe but also prohibited Congress from making abortion policy -- essentially taking the federal government out of the equation entirely and requiring it to be left to the states? . . . Has this ever been proposed in Congress?
Yes, it has. It was proposed by Representative Madison, passed by both chambers of Congress, ratified per the Article V amendment process and can be found here.
2.15.2006 10:30pm
Joegator:

"This is why I think if you are a politician and you think Roe is wrong you should be advocating for a Constitutional amendment. Then the problem would be forever solved and you could quit whining about the Supreme Court's grasp on the Constitution. That's the political solution to the problem, isn't it? Just change it, or shut up."


Can't one say the same thing about people who want abortion to remain legal?????
2.15.2006 11:01pm
Dave Hardy (mail) (www):
Unless of course you subscribe to the "conservatives-are- too-stupid-to-know- what's-for-their-own-good" movement.

Uh, we are talking, not necessarily about conservatives, but about the Republican Party.
2.15.2006 11:19pm
SimonD (www):
MarkW,
Go back and read the first line. ;) "We support a human life amendment to the Constitution." If it already has rights, why would we need a human life amendment to the Constitution?
2.15.2006 11:24pm
EtSeq:
Sorry to jump in the middle of such a contentious debate, but do you really think the Supreme Court would grant cert. in such a case? Since the law in question so clearly flies in the face of Roe, and Bush still might have one or two court picks left in him, don't you think the Court might resist the urge to take on the core issue of Roe so quickly? If they really did want to overrule Roe, I'd think they'd just hack away at it for a while before going for the kill-shot. Just a thought...
2.15.2006 11:28pm
Thales (mail) (www):
The people that are insistent that the 10th amendment resolves the federal-state abortion issue would do well to remember that such a stance if adhered to consistently would eviscerate many other federal constitutional but unenumerated rights such as the right to marry, to educate one's children as one chooses, to travel interstate, to refuse medical treatment, etc as well as constitutional bars to future laws that are not specifically prohibited. An example: a law ordering the imprisonment of people with blue eyes--it doesn't violate the 14th amendment, which as we all know prohibits only racial discrimination as an original matter. It also requires adhering to the Robert Bork stance on the Ninth Amendment, that it is an ink blot. Surely it is less open and shut than that. There may not be an unenumerated right to abortion, but there surely are some unenumerated rights protected by provisions of the federal constitution. The Tenth Amendment does not provide a complete bar or resolution.
2.15.2006 11:49pm
jgshapiro (mail):
SimonD

The Tenth Amendment does not resolve this issue because many people believe it was trumped by the 14th, or by the modern interpretation of the 14th (i.e., substantive due process). Substantive due process as a concept isn't going anywhere, even if Roe is overruled.

My question assumes the status quo from a legal perspective, and asks what would happen if you tried to pass a new amendment that REQUIRED the matter to be left to the states. I realize that both sides would have to speculate as to how the Court would rule in the future before deciding how to vote.

But given that there are probably only 5 votes to uphold Roe, and no one knows who who would replace the next vote from the left (or right) to retire, I wonder what would happen if such an amendment was put to a vote today? The conservatives who have argued for years that it should be left to the states would have to put their vote where their mouth was or be revealed as hypocrites. The liberals who are concerned about a federal ban could at least protect their own blue state back yards.
2.16.2006 1:41am
farmer56 (mail):
Declare a fetus a person? Ha! what a joke! But, you may want to talk to that prosocuter that got two murder convictions for Scott Peterson. I guess the LAW does in fact consider a fetus a person.
2.16.2006 9:04am
SimonD (www):
Thales,
It also requires adhering to the Robert Bork stance on the Ninth Amendment, that it is an ink blot. Surely it is less open and shut than that. There may not be an unenumerated right to abortion, but there surely are some unenumerated rights protected by provisions of the federal constitution.
You've been reading Randy Barnett's essays, haven't you? ;)

Look, I think there's considerable ground between Bork (summarized: the ninth amendment may mean something, but we don't know what, so in cases of underdeterminacy, Judges have no authority) and Barnett (summarized: the ninth amendment protects unenumerated rights because the framers were libertarians, and if the ninth doesn't do it, where else can we find evidence of that libertarian bent?). My knock-down drag-out essay on what I think the Ninth Amendment means has been in drafting hell for the last six months, so for now I will have to refer to comments made here and here for my views on the Ninth Amendment's meaning and effect; suffice to say, it is neither Borkian nor Barnettian. This is essentially the same answer I'd give to jgshapiro, although in the latter case, I feel the need to sneer gratuitously and substantive due process by quoting John Hart Ely: "there is simply no avoiding the fact that the word that follows 'due' is 'process.' ... Familiarity breeds inattention, and we apparently need periodic reminding that 'substantive due process' is a contradiction in terms--sort of like 'green pastel redness.'" (Ely, DEMOCRACY &DISTRUST, at 18). While I disagree with Brother Randy's interpretation of the Ninth Amendment as affording [Federal] protection of unenumerated rights, I accord it a great deal respect than some of the alternatives. While I disagree with his answer, Randy at least purports to ask the right question.
2.16.2006 10:34am
Clayton E. Cramer (mail) (www):

Mr Cramer ignores the above discussion of the likelihood of a Republican Congress stepping in and banning abortion.
I ignore it because the political will isn't there. LOTS of conservatives (like myself) think that Raich was wrongly decided, and we see know reason to make an exception for abortion.
2.16.2006 10:59am
Thales (mail) (www):
Actually I've never read Barnett's books or essays, but he strikes me as a smart fellow, even though I don't think it's accurate to characterize many (if any) of the Framers/ratifiers of the Constitution as libertarians in the modern American sense (if that's what Barnett does). The Ninth Amendment was just an example. The second clause of the Tenth Amendment reinforces the point. The privileges or immunities clause of the Fourteenth has much more substantive meaning than the Southerner-packed Slaughterhouse Cases Court gave it, encompassing the original Bill of Rights and more, as persuasively demonstrated by Akhil Amar and others. Unenumerated rights are there, but it's not easy or mechanical to answer legal questions about them. It does not follow from that difficulty that federal judges should always avoid questions about them or punt to the sovereignty of the 50 states.
2.16.2006 11:07am
tefta (mail):
Nobody: One of Ted Kennedy's favorite riffs is on back-alley abortions and I didn't bring up "rich people" another commenter did. Someone who sees the world by that old commie construct, the haves and the have nots. We spend over a trillion dollars a year on social services and even if the social services bureaucracy/unions gloms off most of that money for themselves, some does actually get to the intended targets.

Get off campus once in a while and you'll notice that it isn't women in the inner cities who are having the most abortions, it's middle and upper class women who should and do know how to prevent pregnancy but choose instead to use the non-judgmental, convenient, cheap and 100% effective method of birth control available at the corner abortion clinic.

Getting rid of these clinics and making abortions a lot harder to obtain would force women (and men) to use contraception to avoid pregnancy. The morning after pill may be some danger to the health of the putative mother, a small price to pay considering that to the babies all abortions are fatal.
2.16.2006 12:55pm
SimonD (www):
The privileges or immunities clause of the Fourteenth has much more substantive meaning than the Southerner-packed Slaughterhouse Cases Court gave it, encompassing the original Bill of Rights and more, as persuasively demonstrated by Akhil Amar and others.
Well, I undoubtedly agree with the first part of this statement, insofar as I think the privileges or immunities clause incorporates the bill of rights, not the due process clause; but I don't agree that it creates a resevoir of unenumerated rights, any more than does any other part of the Constitution.
2.16.2006 1:13pm
David Berke:
SimonD,

No disrespect intended, but I believe that your interpretation of the 9th Amendment is a non-starter. Having reviewed your earlier posts it appears that you believe that the 9th Amendment affirms the rights of the States to grant their citizens greater personal rights than they are granted by the Federal Constitution. I assume that you mean rights against the State rather than the Federal Govt.

1. On what grounds could the Federal Government keep its States from enacting privileges that do not run afoul of the Fed Govt's authority? Under the Supremacy clause, if the State granted rights which were somehow in contradiction with Fed's authority (regardless of what it is), they would not be good against the Fed Govt. To the extent it does not run afoul of the Federal Govt, the Federal Govt has no power to interfere with the state government - the 10th Amendment makes this entirely explicit. Accordingly, your interpretation of the 9th Amendment renders it a meaningless adjunct to the 10th Amendment, because it says that the States can do something which the text of the constitution and its amendments clearly establish, regardless of its presence.

2. As you know, the Ninth Amendment States the following: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This says nothing about state powers, the word state is conspicuously absent, unlike the 10th Amendment, which is meant to deal with State Power. You are essentially inserting additional text that is not called for; i.e., your interpretation is not consistent with the text.

3. It is well known that, Madison, the author of the 9th Amendment explained that its purpose was to address the following argument: "It has been objected also against
a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned
into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system..." Your interpretation would appear to violate this clear statement of intent, because handing the rights under this exclusively to the State Government necessarily means that: (1) such rights were not good against the "General Government," and as such, are still "insecure" against it, (2) such rights only exist if enacted by the state govt, which is inconsistent with the intent expressed here, b/c the goal is automatic protection of unenumerated rights, not the endless enumeration of rights by the state govt which would never be good against the fed govt anyway, (3) generalized protections against the Fed Govt is very consistent with these concerns.

So, at least from my view, your interpretation of the 9th Amendment is not consistent with the text, intent, or generally accepted principles of interpretation.
2.16.2006 1:28pm
Elais:
therut,

I don't see pro-lifers being all sweetness and light. They are the most rabid folks I've seen.
2.16.2006 1:55pm
Deoxy (mail):
Goodness, what a mess. I have only 2 points to make, and the second is far more important:

1. I think any arguments aboutthe lack of "federalist" behaviour on the abortion issue is quite simply silly, for the following reason: there is a Supreme Court ruling on it. Therefore, any and all state efforts on the topic are over-rided. Therefore, "federalism" is pre-empted by Supreme Court activism expansive dictates from the Supreme Court. (I strike "activism" because it is an poor, abused term. Suffice it to say that I take a very dim view of the Supreme Court suddenly "finding" ANY rights 200 years after the fact. That is what Constitutional Amendments are for.)

2. This whole debate about "abortion" is silly. NO ONE CARES ABOUT MEDICAL PROCEDURES. What people care about is "freedom" and "life". The "great divide" here is whether the fetus is considered a "person" or not. We need to decide (and it's probably a decision for Congress, actually) when, exactly, "personhood" begins. Before "personhood", abortion is a medical procedure removing a clump of tissue. After "personhood", abortion results in the death of a person (and we ALREADY have laws and rules about when that sort of thing is legal/ethical/etc).
2.16.2006 2:18pm
Unnamed Co-Conspirator:
Apparently it's lost on Steve that Brown v. Board was, in its essence, about enabling all citizens equal opportunity to participate as full members of society, and that includes participation in the political process -- the process by which we govern ourselves. Apparently, Steve thinks Brown v. Board is to be celebrated as the case where we finally came to our senses and surrendered our right of self-determination to a non-elected, unaccountable panel of judges who, because they're judges, must be better equipped to make hard moral decisions than the rest of us. Let me 'splain somethin' to you, Steve: Brown was the justifed activism of the Court, acting after so many years of having legislative action frustrated by a racist filibuster. It was radical surgery, causing some harm in order to cure a much greater harm, made necessary because the patient ignored good advice for far too long. The problem with Brown (but not enough of a problem to suggest that things should have been decided differently) is that it pushed open the door to government by judicial decree rather than self-government by representative democracy. In a sense, Roe v. Wade is the mutant offspring of slavery and Jim Crow -- because we didn't deal with the former through our democratic processes, we engendered the latter, a malignancy that is only now likely to be treated (the malignancy is not abortion, which has been around for thousands of years, but to the notion that the Courts are appropriate policy-making bodies).
2.16.2006 2:20pm
Unnamed Co-Conspirator:
Why does Congress need to get involved, Deoxy? Sounds like something state legislatures are perfectly able to do themselves. Also, dealing with this at the state level makes it more likely that the policy preferences of those actually affected by the policy will be considered. It's what the framers had in mind when they put the notion of dual sovereignty into the constitution. Or does that only hold for those issues you don't feel really, really strongly about?
2.16.2006 2:28pm
Unnamed Co-Conspirator:
Many of you seem to think that just because abortion is a very controversial issue, it demands a "final" resolution. As if that will reduce the controversy. Consider for a moment that abortion is controversial because a "final" resolution was imposed, thereby removing the possibility that citizens and their representatives might continue to discuss the matter in meaningful forums, attempt to persuade and make policy regarding the issue. We don't need a final resolution, we don't need consensus (wishing won't make it so), but we do need a process for making policy that respects both viewpoints on the issue (fortunately, we have one: it's called "legislation" and it's done by elected legislators -- we have those, too). If you want those who disagree with policy to accept it nevertheless, you don't necessarily need to change the policy, but you do need to avoid cutting that group out of the policy-making process. Don't expect your average lawyer to understand that, though.
2.16.2006 2:39pm
Thorley Winston (mail) (www):
This is why I think if you are a politician and you think Roe is wrong you should be advocating for a Constitutional amendment. Then the problem would be forever solved and you could quit whining about the Supreme Court's grasp on the Constitution. That's the political solution to the problem, isn't it? Just change it, or shut up.


Actually that should read:

This is why I think if you are a politician and you think the Constitution protects the "right" to an abortion you should be advocating for a Constitutional amendment. Then the problem would be forever solved and you could quit whining about the Supreme Court's grasp on the Constitution. That's the political solution to the problem, isn't it? Just change it, or shut up.
2.16.2006 4:09pm
Thorley Winston (mail) (www):
I'm still waiting for some enterprising poster to attempt to reconcile the following points made above:

1. Overturning Roe would be a nightmare for the Republican Party, because it would send voters flocking to the Democrats.

2. Even so, right after Roe is overturned, congressional Republicans would still think it is a great idea to pass a nationwide ban on abortion.


Several possibilities come to mind:

1) Point 1 is wishful thinking on the part of people who don't seem to grasp that if there really was a plurality or majority that supported the public policy of Roe (or rather Casey since that seems to be the controlling case), it would have been represented through the laws passed by the legislatures of the States rather than judicial fiat by the SCOTUS.

2) The GOP would actually stand to benefit by having Roe/Casey overturned and the issue sent to the States because it would encourage pro-lifers to be even more active at the grassroots in electing conservative legislators and governors (many of whom would go on to become conservative Congressmen and Presidents).

3) Many who favor overturning Roe actually do believe it was wrongly decided not just because they disagree with merits of the public policy the SCOTUS decided to legislate from the bench when it decided to invent a "constitutional right" (now a personal liberty interest) to an abortion. In which case, yes we do favor returning decisions about divisive policy issues that involve competing rights (mother's, child's, and the father's) to the State level where they can get hashed out, even if we won't agree with the balance that some States chose.

4) Many GOPers and Democrats think that banning what amounts to legalized infanticide is on par with abolishing slavery and more important than who controls Congress in the long run.

5) In the case of a conflict between 3 and 4 (those who favor returning it to the States and those who really do want to legislate on a national level), it could bring us back to a serious debate at the doctrine of enumerated powers (e.g. Tenth Amendment) and the proper limits of the Commerce Clause.
2.16.2006 4:28pm
Simon Oliver Lockwood:
Farmer 56 said: "All. In the years since Roe. Not a single elected member of congress has offered a bill to codify Roe."

Actually, The Freedom of Choice Act was introduced in the 102d, 103d, and 104th Congresses. It was actually reported by the Senate Labor Committee (chaired by Ted Kennedy) in the 102d and 103d Congresses.
2.16.2006 6:08pm