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Are Abortion Politics Increasingly Irrelevant?:
Over at Balkinization, Neal Devins has this provocative post arguing "yes."
Dilan Esper (mail) (www):
I suspect that Professor Devins is wrong on the substance of his claim-- abortion opponents still want to overturn Roe v. Wade, and Roberts and Alito would be willing to do it if they got a 5th vote on the Court. But I admit I can't prove that.

I also suspect that Professor Devins is wrong on the politics as well. The effect he describes only holds as long as pro-lifers continue to propose things that don't interfere with the ability of middle class women to obtain abortions if they need them. But I suspect after they get their ultrasound laws and informed consent statutes passed, they will go after some other aspect of the issue and attempt to place further, more onerous restrictions on the right. (If they don't, at some point, their donor base and the Republican evangelical vote may start drying up.) And there will be a tipping point.

Finally, this really is an issue where significant segments of the voting public have very different worldviews. For pro-lifers, abortion not only offends their sense of morality (i.e., as a form of homicide) but is connected to a whole bunch of developments in the culture (e.g., the sexual revolution, feminism) that they don't like very much. For pro-choicers, abortion is central to gender equality and sexual freedom. This isn't going to change and I don't see any way that this issue isn't going to continue to be salient. It should be salient.
9.10.2008 6:27pm
Houston Lawyer:
South Carolina Democratic chairwoman Carol Fowler sharply attacked Sarah Palin today, saying John McCain had chosen a running mate "whose primary qualification seems to be that she hasn't had an abortion."
9.10.2008 6:32pm
Per Son:
And? Lynn Westmoreland said that Obama and his wife were uppity. I have never heard of "uppity" used outside of referring to "black people who do not know their place."

My point? It has none - like yours.
9.10.2008 6:37pm
OrinKerr:
Houston Lawyer,

Maybe I'm missing something, but what does this have to do with the Devins essay?
9.10.2008 6:44pm
Per Son:
Clinton did it too, and he was much worse!
9.10.2008 6:50pm
Houston Lawyer:
My point, other than to discomfit, is that a whole lot of people still see abortion as a major issue. Those who say it's not are invariably OK with the current state of affairs. Let one of the liberal justices on the supreme court die while McCain is in office and we will suddenly hear again that abortion is the most important right guaranteed by the Constitution.
9.10.2008 6:57pm
Pendulum (mail):
I disagree.

I still vote with a heavy eye towards candidates' views on abortion. I would vote for someone with views substantially different from my own, but this issue would have to be outweighed by significant other factors. Millions of others clearly do the same.

The Supreme Court cannot overturn Roe v. Wade because they don't have the votes to overturn Roe v. Wade. Does anyone doubt that if Justices Stevens and Ginsburg were to be replaced by Justices in the mold of Roberts or Rehnquist that Roe v. Wade would not be overturned?
9.10.2008 7:01pm
Dilan Esper (mail) (www):
Pendulum:

It's possible it wouldn't, based on the facts that Professor Devins mentions. I suspect it would, though.
9.10.2008 7:03pm
Pendulum (mail):
Dilan,

Surely there's a possible world in which one or two more justices who are either pro life, or oppose Roe on constitutional grounds, are appointed?

As long as that possible world exists, I can't see how that aspect of Prof. Devins' argument can possibly be correct.
9.10.2008 7:06pm
Dilan Esper (mail) (www):
Pendulum:

I agree.
9.10.2008 7:10pm
John from Dallas (mail):
Pendulum: "Surely there's a possible world in which one or two more justices who are either pro life, or oppose Roe on constitutional grounds, are appointed?"

Strange. I would have thought that the only basis for overturning Roe is on constitutional grounds. You wouldn't be suggesting that someone who is pro-life would overturn Roe simply because they are pro life, regardless of their view of the constitutional underpinnings of the opinion? Do you think such a person has any place on the court?
9.10.2008 7:11pm
ArtEclectic (mail):
I agree with Devins but for different reasons. The hypocrisy on either side of the issue has not gone unnoticed by the general public. That abortion rights activists continue to fight efforts to make sure facilities meet strict medical standards reflects badly on them. It also reflects badly that they fight informed consent and ultrasound. On the other side, the continued emphatic resistance of right to life regarding birth control makes it clear that their goal is not to end abortion but to stop people from having sex unless they intend to reproduce. Neither attitude is playing well with the moderate middle who have correctly identified both as forms of extremism.
9.10.2008 7:14pm
Observer:
John: Since the Constitution is silent on abortion, it is hard to imagine that anyone who is pro-life believes that abortion is a constitutional right. The idea that it is a right comes from pro-choice people who want the Constitution to reflect their views.
9.10.2008 7:16pm
Oren:

But I suspect after they get their ultrasound laws and informed consent statutes passed, they will go after some other aspect of the issue and attempt to place further, more onerous restrictions on the right.

Dilan, I have no doubt they will attempt, but the actual point was that moderate conservatives would restrain them from doing so for political reasons. I think that he is largely correct in that analysis but that depends strongly on the balance of power in the GOP.
9.10.2008 7:16pm
Libertarian1 (mail):
Suppose Roe v Wade is overturned. How exactly would that change life in NY, NJ, California, Illinois, Washington, Oregon, Wisconsin etc? If it becomes a state legal concern the laws already in place or rapidly passed would control.

The deep South would probably be different. I have never heard the panel here so concerned about the best interests of Mississippians.
9.10.2008 7:19pm
Oren:

Since the Constitution is silent on abortionhome-schooling, it is hard to imagine that anyone who is pro-HS believes that home-schooling is a constitutional right.
Oh wait.
9.10.2008 7:20pm
titus32:
This is only one side of the issue. If Roe were overturned, would the state legislatures then act to illegalize abortion? The conventional wisdom is that -- at most -- only a very few states would do so. This supports the irrelevance of abortion politics, at least abortion politics at the Supreme Court (where it is currently confined).
9.10.2008 7:24pm
Oren:

The deep South would probably be different. I have never heard the panel here so concerned about the best interests of Mississippians.
The burden would fall rather unequally by class -- roundtrip to Chicago plus a hotel for a few days (if you've got some silly waiting period) would easily triple the cost.
9.10.2008 7:26pm
Pendulum (mail):

You wouldn't be suggesting that someone who is pro-life would overturn Roe simply because they are pro life, regardless of their view of the constitutional underpinnings of the opinion? Do you think such a person has any place on the court?


I would certainly suggest that someone who's either pro-life or pro-choice would overturn or uphold Roe v. Wade upon the basis of their personal opinion.

To be more charitable, I think that their personal opinion is very frequently a strong motivating force in formulating peoples' views on the correct constitutional underpinnings of the issue. To be less charitable, they call it how they feel it.

As to your second question, I've observed all current justices (I'll except Roberts and Alito, whom I haven't read enough of) craft opinions where the most apparent explanation was that their personal views were guiding their constitutional views.

Whether I think these people have a place on the Court? A more idealistic Pendulum would have said no; I now declare myself unsure - I think it may be an inevitable part of jurisprudence, though I can't figure out if it's healthy or not, legitimate or illegitimate.
9.10.2008 7:27pm
Oren:

I've observed all current justices [snip] craft opinions where the most apparent explanation was that their personal views were guiding their constitutional views.
Apparent explanation is not really good enough in this instance. I'm more peeved by the times where justices go against their longstanding jurisprudence, e.g. the libs in Heller voting against an individual right after reading all the others expansively or Scalia's commerce clause turnabout in Raich or PICS. Perhaps they are legitimately distinguishing the case from their precedent but it seems to me that you've got to sleep in that bed (well, they don't, that's the magic of SCOTUS . . . )
9.10.2008 7:39pm
Pendulum (mail):
Apparent explanation is not really good enough in this instance.

You're right, I was pulling punches.

They make it up as they go along.
9.10.2008 7:46pm
trad and anon:
Right now, abortion politics can't be that much of an issue because nobody in the country has the power to enact significant restrictions on abortion, especially since SCOTUS has overturned even relatively minor restrictions like the "partial-birth" abortion ban. There are only 4 votes for overturning the Roe/Casey line of cases, and there might not even be that many since we shouldn't completely rule out the chance that Roberts or Alito will surprise us. So abortion politics consists entirely of penny-ante stuff like ultrasound legislation and Presidential election histrionics.

If Roe is overturned things will be very different, since the pro-life/anti-choice movement will step up demands for extremely restrictive legislation, or even a total ban, including at the national level. The feds probably couldn't just flat-out ban abortion but they could achieve the same effect by banning traveling in interstate commerce to obtain or perform an abortion, using the instrumentalities of interstate commerce or instrumentalities that have traveled in interstate commerce to perform or obtain an abortion, or performing or obtaining an abortion in places of accommodation. They could also require states to ban abortion to obtain Medicare funds.
9.10.2008 7:55pm
trad and anon:
I would certainly suggest that someone who's either pro-life or pro-choice would overturn or uphold Roe v. Wade upon the basis of their personal opinion.

To be more charitable, I think that their personal opinion is very frequently a strong motivating force in formulating peoples' views on the correct constitutional underpinnings of the issue. To be less charitable, they call it how they feel it.
You can definitely find some pro-choicers who think Roe was wrongly decided. But are there any pro-lifers anywhere who think Roe was rightly decided? I've never heard of one.
9.10.2008 8:00pm
Oren:
Pendulum, I meant not enough in the exact opposite sense. I don't consider a decision to be motivated by ideology unless I can clearly see that it violates a goodly number of precedents or interpretive schemes previously endorsed by that justice.
9.10.2008 8:00pm
gattsuru (mail) (www):
Given the increasing power of genetic and early life testing, I expect the importance of legalized abortion to only become more significant as times goes on. There are already fairly effective voluntary eugenics plans that have effectively gotten rid of Cystic Fibrosis patients and all but the rarest Downs Syndrome sufferers. With the estimates on a fetal test for autism and Asperger's Syndrome usually on the sub-decade scale, dozens of other genetically caused or triggered illnesses or mental atyicalities only a few years out past that, and even mere oddities like homosexuality suspected of having a basis traced back to before birth, both the potential to change the very fate of humanity or prevent others from doing so will certainly keep this on the political hot plate.

You wouldn't be suggesting that someone who is pro-life would overturn Roe simply because they are pro life, regardless of their view of the constitutional underpinnings of the opinion?

Generally speaking, I would hope that the underlying difference is the very question of how significant an intrusion into personal privacy and control of a person's body the ban is and whether the interest of discouraging the destruction of fetuses/zygotes would an important distinguishing point from both the personal and legal stance.

In short, the answer is a bit of a mu, presupposing a condition that does not seem to exist.
9.10.2008 8:04pm
Mark Field (mail):

Suppose Roe v Wade is overturned. How exactly would that change life in NY, NJ, California, Illinois, Washington, Oregon, Wisconsin etc? If it becomes a state legal concern the laws already in place or rapidly passed would control.


trad and anon touched on this, but you underestimate the extent to which the most fervent opponents of abortion want a national ban on abortion. In their view, the "life" clause of the 5th and 14th Amendments prohibit abortion as a matter of Constitutional law.

That's not to say we're there yet or even soon. But that is the ultimate goal of some.
9.10.2008 8:38pm
trad and anon:
trad and anon touched on this, but you underestimate the extent to which the most fervent opponents of abortion want a national ban on abortion. In their view, the "life" clause of the 5th and 14th Amendments prohibit abortion as a matter of Constitutional law.
They're not going to get nearly that far, but if Roe were overturned they'd definitely push for substantial federal restrictions. Pro-life politicians would suddenly have to take a stand on whether or not there should be a national ban on all abortions, because that's what the pro-life movement would like to see.
9.10.2008 8:45pm
DangerMouse:
On the other side, the continued emphatic resistance of right to life regarding birth control makes it clear that their goal is not to end abortion but to stop people from having sex unless they intend to reproduce.

You don't understand where those subset of pro-lifers are coming from. They're most likely Catholics, who do not believe in birth control either. There are other pro-lifers who think birth control, generally, is ok, so long as it doesn't involve killing an embryo (like an induced abortion drug or something). Moreover, you misrepresent the Catholic position as well, which is not against sex unless reproduction is intended, but that sex without an openness to reproduction is immoral. You don't HAVE to reproduce, but must be open to it, for a host of theological reasons that I won't get into here.
9.10.2008 9:08pm
John D (mail):
Observer,

The idea that it is a right comes from pro-choice people who want the Constitution to reflect their views.


I think both sides of this issue (and many others besides) think that their view is the one supported by the Constitution. Certainly those who claim the Roe court (or any other court) "invented" rights are making a claim that those rights were not inherent in the Constitution.

This should be true of any Constitutional claim, and it clearly is. We all want the Constitution to be read in a manner consistent with our views. Where it is not specific on an issue, we're going to parse words.
9.10.2008 9:56pm
theobromophile (www):
Mr Devins seems to mistake changed tactics for changed beliefs. Pro-lifers are trying to use things like partial-birth abortion, parental notification, and the like to chip away at Roe and its progeny. Once the "right to reproduce" looks like Swiss cheese, they'll declare Roe to have been effectually overturned and then do the formal overturning in a case.

Some of the plan is to chip away; some of the plan is to introduce and exploit contradictions. The Born Alive Infants Protection Act passed the Senate by a vote of 98-0, IIRC, but many states still allow women to abort foetuses of that age. If PBA is inhumane, then is D&E any better?

Colorado and South Dakota will continue to put forth legislation that is unconstitutional under Casey. Other states will continue to push for things like parental notification, and, having secured that, will then ask about spousal notification.

IMHO, a lot of pro-lifers are biding their time. It's not just that they are waiting for more stories like this one, or for the breakthrough in neonatal technology that will bring the age of viability down. It's enough for people to get more familiar with 4D ultrasounds and to learn more about embryology. People who see high-tech, clear pictures of 10-week-old embryos think, "That's a baby."
9.10.2008 10:07pm
paul lukasiak (mail):

The hypocrisy on either side of the issue has not gone unnoticed by the general public. That abortion rights activists continue to fight efforts to make sure facilities meet strict medical standards reflects badly on them. It also reflects badly that they fight informed consent and ultrasound.


The problem, of course, is that all of these proposals are just end runs around a woman's right to choose. There is no need for additional, abortion-clinic specific, legislation that imposes stricter standards than other facilities that provide outpatient procedures. "Informed consent" and "ultrasound" are simply efforts to guilt women into not having abortions (I mean, if a woman seeks an abortion, she already knows what she has inside her...)

I also doubt that Roe v Wade will be overturned -- unless it is overturned in a way that provides a firmer legal footing for a woman's right to choose than the original case. Ultimately, Roe v Wade is a privacy issues -- and overturning it means that the right to privacy that people assume they have will null and void.

Abortion is one of those 10th Amendment issues --- a non-enumerated right "reserved...to the people." The Constitution does not allow the government to regulate people's medical decisions, any more than it provides a 'right to have an abortion'.
9.10.2008 10:17pm
FantasiaWHT:

that have effectively gotten rid of Cystic Fibrosis patients and all but the rarest Downs Syndrome sufferers


I find it fascinating that you refer not to eradicating diseases, but rather eradicating people

Oh wait, babies in utero supposedly aren't people, I forgot. Forget a national legislative ban on abortions, give me a constitutional amendment recognizing that babies in utero are people and citizens with rights, oh, kind of like those post-civil war amendments did for blacks. They weren't really people under SCOTUS precedent, either.
9.10.2008 10:50pm
David Warner:
The tide will not turn until those who experienced Roe as a visceral part of Women's Liberation (a liberation shown by Palin's appeal to be now widely celebrated across political divides) go on to the great protest march in the sky. Make no mistake, however. The tide will then turn. It will be led by women themselves. The Democratic Reagan will be a (very) liberal pro-life woman.
9.10.2008 10:55pm
CB55 (mail):
The United States has the record of having the largest or second largest prison system on the planet. Most are housed for drug related crime. If the American people have a big desire via their courts to make abortion illegal they will spend a bigger portion of their tax dollars on enforcing abortion and drug laws and housing inmates. Drug induced abortions is a legal business practice and is good for drug makers, dispensers and medical care providers. Making it illegal will make it big business in the shadow economy known as the black market. Does any one think drug makers are going to stop making abortion drugs just because the Supreme Court says NO or (president) McCain says NO. They will simply outsource or take that part of their business to Canada or Mexico who will be happy to have American jobs.

America will simply establish new business to prisons, law enforcement, lawyers and the courts as well as their suppliers.
9.10.2008 11:26pm
Dilan Esper (mail) (www):
Moreover, you misrepresent the Catholic position as well, which is not against sex unless reproduction is intended, but that sex without an openness to reproduction is immoral.

I realize that this is the Church's position. It's worth noting, however, that not only am I not aware of very many noncatholics who accept that this is a valid distinction, but I am not aware of very many noncatholics (including pro-life ones) who even think it's anything other than silly.

(The basic contours of this are that the Catholic Church's leaders have a particular result they want to reach due to their personal bigotry (i.e., gay sex is never permissible, straight sex within marriage is always permissible), and simply saying sex is only OK if it is procreative makes one look ridiculous because it would mean that elderly couples, sterile couples, etc., can't have sex. So they pretend that an elderly or sterile couple is "open to reproduction", even though everyone knows they aren't and the Church is just making up a distinction in order to reach the result it wants to reach.)
9.10.2008 11:47pm
CB55 (mail):
Catholics are all for making babies for the greater good of the Kingdom of God and bringing them to God. They see it as a Win-Win for God. Which is why they wanna see more illegals from Mexico in the USA because they make more babies for the Church while White American birth rates are on the down side. You can not grow the church with out making more babies. So every egg and sperm is sacred and is filled with God.
9.11.2008 12:02am
David Warner:
Dilan,

"personal bigotry"

That's one theory. On the other hand, the predictions vis-a-vis the effects of disconnecting the sex act from procreation made by Mr. Wojtyla (a driving force behind the success of Vatican II and the defeat of fascism locally and communism globally - i.e. a man of wide-ranging liberal accomplishment) have proven far more prescient than those offered by Mr. Esper's colleagues.

Perhaps he was mistaken about the value of homosexual acts within the marriage vow, which preserves the form if not the function of the sex-procreation link, but this is hardly grounds to attribute bigotry to such a man or those inspired by him, including this non-Catholic.
9.11.2008 12:20am
ReaderY:
I trhink Professor Devin is wrong. The percentage of people whose presidential vote will be influenced by the candidates' abortion positions may be lower than in the past, but it is still substantial.

The Court is currently split approximately 4-1-4. Although Chief Justice Roberts practice of distinguishing cases into oblivion without actually overturning them suggests Roe would never be overturned, the dissenters have made clear they would uphold most abortion laws.

Moreover, it's perfectly true that current controversies are only about marginal matters, but there's a simple, very straightforward tactical reason for that. The pro-life community has concluded, wisely I think, that it's critical not to annoy Justice Kennedy and that Justice Kennedy would be annoyed by a frontal challenge to Roe. His recent opinions on the two partial-birth abortion cases, particularly his dissent in the first, suggest that he is personally troubled by aspects of current abortion law, perceives abortion as morally problematic, and might be persuaded to permit increased restrictions, and perhaps over time even change his view further, if a more gradual strategy is adopted.

If a liberal justice retires and a conservative one added so that there is thought to be a 5-4 majority shift, this strategy would likely change in a heartbeat.

I think it's a perfectly reasonable strategy for the McCain team to be low-key about abortion, both because they need to pick up some Democratic and independent voters to win and because there's simply not much can be done at the moment, so one may as well focus attention on what one can actually influence. The same is true on the Supreme Court: since each side knows it can't change the status quo except for whatever changes at the margins Justice Kennedy thinks fit to make, there's really no point annoying the other side by expounding ones views or making a fuss about subject one can't change. But here two, a change of a justice (at least a replacement by one from the other ideological side) would change what is perceived to be possible, and hence what people will do, in a heartbeat.
9.11.2008 12:59am
Waldensian (mail):

With the estimates on a fetal test for autism and Asperger's Syndrome usually on the sub-decade scale,

But this can never come to pass, since we know that autism is caused by vaccines, which are not given in utero.

In all seriousness, however, I am intrigued by your claim, as I hadn't heard of medical developments suggesting a fetal test for autism will be developed within 10 years. Does this suggest that any environmental factor(s) associated with autism are necessarily affecting developing fetuses, rather than children after birth?
9.11.2008 1:12am
Clayton E. Cramer (mail) (www):

On the other side, the continued emphatic resistance of right to life regarding birth control makes it clear that their goal is not to end abortion but to stop people from having sex unless they intend to reproduce.
Over the years, I've talked to quite a few pro-life activists. I think I've met one who opposed birth control, and I was not even sure that she wanted it illegal--she just didn't approve of it, and didn't think that Christians should ever use it. The vast majority of pro-lifers that I have talked to recognize that condoms substantially wipe out the case for abortion.

Don't confuse "we should encourage kids to wait until marriage" with "birth control should be illegal."
9.11.2008 1:55am
Clayton E. Cramer (mail) (www):

trad and anon touched on this, but you underestimate the extent to which the most fervent opponents of abortion want a national ban on abortion. In their view, the "life" clause of the 5th and 14th Amendments prohibit abortion as a matter of Constitutional law.
Fortunately, most conservatives put a higher premium on federalism. It is rather unfortunate that liberals spent so many years making excuses for why everything was properly controlled at the federal level, either by Congress, or by the U.S. Supreme Court finding all sorts of rights hidden so well that we had spent a couple of centuries never noticing them.
9.11.2008 1:58am
ArtEclectic (mail):
DangerMouse, I don't care where those pro-lifers are coming from. The fact remains that they spend their Saturday afternoon picketing clinics and not handing out condoms and birth control pills at the mall. Abortion is not the problem. Abortion is the consequence of an unwanted pregnancy. Thence, the PROBLEM is the unwanted pregnancy. Fix that and the abortion rate drops to negligible numbers.

This here is the place where the pro-life movement chimes in that not having sex is that answer to unwanted pregnancy. Right now, the right to life movement has imposed a gag order on government discussing contraception. How is this helping? Teaching abstinence PLUS contraception is the correct choice, but not allowed under the current rules set by pro-life activists. Until the pro-life movement is ready to actually work towards eliminating unwanted pregnancy they have plenty of blood on their hands as well. Quoting theology specific to one religion is not an answer. Preventing the unwanted pregnancy in the first place is the answer.
9.11.2008 1:58am
Clayton E. Cramer (mail) (www):

The percentage of people whose presidential vote will be influenced by the candidates' abortion positions may be lower than in the past, but it is still substantial.
There is no better proof that support for unlimited abortion is a minority viewpoint than the way in which Roe v. Wade has become the Holy Grail of liberalism.

If Americans were as enthusiastic about abortion as the Democrats want us to believe, returning the authority to regulate abortion to the states would abolish abortion in what? Ten states, maximum? Maybe fifteen? I'm not even sure that it would be that high. Before Roe v. Wade, a lot of states made abortion theoretically illegal (except to save the life of the mother), but in practice, abortion was widespread: 199 abortions per 1,000 live births in Oregon in 1970, for example.

There's a strong majority of Americans who are hopelessly inconsistent on abortion. They are repelled by it, they want it to happen a lot less, and they don't mind discouraging abortion as birth control. They are prepared to tolerate it for rape, incest, severe defects--with no apparent awareness of the hopeless moral inconsistency of all this.

If Roe were overturned, there would be a lot of screaming and yelling. Pro-lifers would get some modest restrictions on abortion through, but attempts to completely ban abortion would simply die just about everywhere.
9.11.2008 2:05am
theobromophile (www):
The problem, of course, is that all of these proposals are just end runs around a woman's right to choose.

Not true at all. I've seen statistics on women who change their minds after viewing the foetal ultrasound. Between 75% and 90% of the women change their mind. I cannot remember the stats for women who change their mind when they hear the heart beat (which happens about three weeks after conception, or about a week after her period would be due), but it's the majority.

Ultrasounds give women more information about what they are doing. It will either cement her decision to have an abortion (after all, the pro-choicers often say that the embryo/foetus is nothing save a blob of cells), or give her information that changes her mind, which is pretty much one working definition of informed consent. Either way, there's little problem with it.

Riddle me this: what is lost by requiring clinics to give women the option of seeing their ultrasounds? When I had a tumour, I got to see the ultrasound. The only time I haven't been able to see the results of an ultrasound (and I've had about ten of them, for various things) is when I was in the ER and on a backboard.

Why the special rules for abortion? WHY, in the name of feminism, treat women like fragile little beings that cannot handle seeing an ultrasound? If it is just another medical procedure, why treat it differently? Why the simultaneous presumption that women are familiar with embryological development and that they are too weak to go through with a planned procedure because of a picture?
9.11.2008 2:07am
Clayton E. Cramer (mail) (www):

This here is the place where the pro-life movement chimes in that not having sex is that answer to unwanted pregnancy. Right now, the right to life movement has imposed a gag order on government discussing contraception.
I'm afraid that's only a part of the problem. One of the problems is women who use abortion as their primary method of birth control. This November 29, 2005 Los Angeles Times article has this chilling discussion in it, when covering an Arkansas abortionist's work:

Before, after and even during an abortion, Harrison lectures his patients on birth control. He urges them to get on the pill and to insist their partners use condoms.

They promise. But Harrison knows many will be back.

His first patient of the day, Sarah, 23, says it never occurred to her to use birth control, though she has been sexually active for six years. When she became pregnant this fall, Sarah, who works in real estate, was in the midst of planning her wedding. "I don't think my dress would have fit with a baby in there," she says.

The last patient of the day, a 32-year-old college student named Stephanie, has had four abortions in the last 12 years. She keeps forgetting to take her birth control pills. Abortion "is a bummer," she says, "but no big stress."
9.11.2008 2:13am
LM (mail):
Pendulum:

You're right, I was pulling punches.

They make it up as they go along.

What Oren said. Plus, just because a Justice seems to decide some cases to reach politically desirable outcomes, judicial philosophy be damned, doesn't mean s/he doesn't decide other cases out of fidelity to judicial philosophy even though it means political outcomes s/he doesn't like. Unless you can show evidence of Justices voting predominantly on their political preferences when those preferences conflict with their judicial philosophies, "They make it up as they go along" seems ipse dixit, and in my opinion unduly cynical.
9.11.2008 2:39am
DangerMouse:
DangerMouse, I don't care where those pro-lifers are coming from. The fact remains that they spend their Saturday afternoon picketing clinics and not handing out condoms and birth control pills at the mall. Abortion is not the problem. Abortion is the consequence of an unwanted pregnancy. Thence, the PROBLEM is the unwanted pregnancy. Fix that and the abortion rate drops to negligible numbers.

The problem isn't that the pregnancy is "unwanted." The problem is that people think they can murder someone to solve that problem. Lots of things are unwanted. But we don't go around killing people to solve that problem. I didn't want to pay high taxes this year, and every year in fact. Should I have murdered people who work at the IRS? Or my fat congressman who always votes for a tax increase? People have to realize that obligations come from things that you do. I pay a lot of taxes because I work hard and earn a decent living. People are bound to have children when they engage in sex. It's just a fact of life.

You want a culture where it's ok to murder innocent people to solve problems. Eventually, that mentality trickles down. First, it's unborn children. Then the infirm and the sick (ala Terry Schiavo), then the old, etc., etc. We have a Vice President who was recently attacked by the South Carolina DNC for not having abortion, as if she should've had one, to abort a Downs Syndrome baby like the 90% of other mothers who are pregnant with one. That's another problem being solved, I guess, with murder.

I don't expect people to be Catholic, but the pro-life movement is not holding back ANYTHING when it comes to birth control. People are not morons. They know about birth control. It has nothing to do with whatever policy lecture the government happens to give at any one point in time, and all about the culture. And the culture right now thinks it's perfectly legitimate to murder someone if the greater good demands it.
9.11.2008 2:54am
gattsuru (mail) (www):
FantasiaWHT:
I find it fascinating that you refer not to eradicating diseases, but rather eradicating people


I was rather intentionally specific on that matter. The wide-spread availability and general acceptance of abortion in the cases of fetuses with abnormal physical or neurological states, combined with increased genetic testing for these conditions, has *only* prevent people and patients from occurring. The conditions themselves are no closer to being solved or treated, and in cases like Cystic Fibrosis are only getting less likely to ever occur. Two decades ago CF funding drives were common in movie theaters and schools; today there is nearly no interest. Treatment for the physical development problems common to Downs Syndrome children has gone from obscure to nearly non-existent.

I do not mean to beat around the bush; this is eugenics. It's conveniently a rather huggy and friendly face to the matter -- Cystic Fibrosis is painful and patients seldom live past thirty, while Downs Syndrome correlates with unusual mental development and a predisposition to neurodegenerative disorders-- but it's getting rid of the people, not the disease.

Waldensian:
In all seriousness, however, I am intrigued by your claim, as I hadn't heard of medical developments suggesting a fetal test for autism will be developed within 10 years. Does this suggest that any environmental factor(s) associated with autism are necessarily affecting developing fetuses, rather than children after birth?

I'm not sure about individual medical developments, but Dr. Joseph Buxbaum, head of the Autism Genome Project, claimed to think that "within ten years we'll have found the genes of major affect and most of the genes of minor affect," and that there could be a prenatal test within 10 years. That was stated in 2005.

My viewpoint on the situation is mirrored fairly well by some of the sites run by individuals with autism or Asperger's, especially given the tendency for national governments to find these people 'not with standing' for human rights suits.

As to the question of environmental factor(s), I don't believe it was seriously focused on by the Autism Genome Project, or for that matter most of those looking towards prenatal tests. Remember that not even the Downs Syndrome test is fool-proof (and in fact has nontrivial risks). Whether this sort of test was used to provide targeted treatment or for eugenics purposes, the question of even a 10% environmental aspect is probably moot.
9.11.2008 3:50am
AnonymousAttorney:

There's a strong majority of Americans who are hopelessly inconsistent on abortion. They are repelled by it, they want it to happen a lot less, and they don't mind discouraging abortion as birth control. They are prepared to tolerate it for rape, incest, severe defects--with no apparent awareness of the hopeless moral inconsistency of all this.


This is a problem only if you view consistency as the be-all, end-all of any argument or position. Not all people (and perhaps not even most people) do, and those familiar with Kurt Godel's work might even suggest that trying to be entirely consistent is an ultimately futile endeavor. I don't have a problem seeing this issue in shades of gray (or shades of personhood, if you like). Why should consistency be the deciding factor? What advantages does it offer, besides consistency itself?
9.11.2008 9:56am
ReaderY:

"Abortion isn't a problem. Abortion is a consequence of unwanted pregnancies."



But torture is also a consequence of the unwanted. If only the wanted existed, there would be no torture. Same with assassinations etc.

Does this mean that such things aren't problems? Should such matters should be left strictly to military professionals without interference from legislators and their morals? What expertise does the public have in such matters? What basis do they have to interfere? Shouldn't pragmatic considerations trump moral ones? Given the torture or assassination decision can be a difficult one, why shouldn't those most directly involved in these matters be trusted to make the appropriate choice?
9.11.2008 10:01am
martinned (mail) (www):
Wow! Here's an interesting one:

Trad and anon said:
The feds probably couldn't just flat-out ban abortion but they could achieve the same effect by banning traveling in interstate commerce to obtain or perform an abortion, using the instrumentalities of interstate commerce or instrumentalities that have traveled in interstate commerce to perform or obtain an abortion, or performing or obtaining an abortion in places of accommodation.

Could they do that? Could the Federal government ban interstate travel for the purposes of doing something that is legal in the state that one is travelling to? Really?

(The next point in this comment, about making Medicare contributions depend on banning abortion, irks me too, but seems less controversial.)
9.11.2008 10:04am
Oren:

Could the Federal government ban interstate travel for the purposes of doing something that is legal in the state that one is travelling to?
Yes.
9.11.2008 11:22am
Clayton E. Cramer (mail) (www):

Why should consistency be the deciding factor? What advantages does it offer, besides consistency itself?
That equal protection of the law concept somewhat argues for consistency, doesn't it?
9.11.2008 11:29am
Oren:

It's conveniently a rather huggy and friendly face to the matter -- Cystic Fibrosis is painful and patients seldom live past thirty, while Downs Syndrome correlates with unusual mental development and a predisposition to neurodegenerative disorders.

And we are to believe that increasing the proportion of sufferers of disease is the moral high ground?

Lets take an admittedly extreme example -- some infants are literally born without a brain. The resulting child will never be a conscious human being in any meaningful sense.
9.11.2008 11:57am
Curious Catholic:
Dangermouse or anyone else -

I know that Catholic teaching says that the government should prohibit abortion, and that Catholic teaching is against contraception in the personal-use sense. But does what Church documents, if any, address whether contraception should be limited by the government? I know that many pro-life Catholics would not go that far as individuals, but what about the Magisterium? I'm not aware of anything, but am genuinely curious to find out.
9.11.2008 12:21pm
martinned (mail) (www):
@Oren: Thanks for your concise answer. May I ask which provision in the constitution you had in mind as the legal basis for banning interstate travel for the purposes of obtaining an abortion?

After all, many in Ireland would like to stop pregnant women from travelling to England to get an abortion, but both Irish constitutional law and probably EU law forbid that. (The ruling is AG v. X, Supreme Court of Ireland, 1992, which is as messed up a situation as one is likely to see in a Court of Law, where unfortunately and, as it turned out, unlawfully the government of Ireland made it worse by stopping the defendant from travelling to England to get an abortion.)

One assumes that in the US, even more than in the EU, the basic principle that citizens can freely travel throughout the country for any lawful purpose would not be easily overruled by statute. So are there US precedents about Federal law legislating interstate travel? (Other than transporting a minor across state lines without permission. That one I know of.)
9.11.2008 1:29pm
AnonymousAttorney:

That equal protection of the law concept somewhat argues for consistency, doesn't it?


Sure, it does. There are other concepts embodied in both the U.S. Constitution and the justice system than consistency, though. Some cases and fact situations do not require the balancing of those principles against each other, but some do. All I was saying is that consistency does not trump all other possible considerations in everyone's eyes. If it does for you that's fine but not a universal sentiment.

If you view fetuses as equal to all other stages of human life, then it is inconsistent to treat them differently. If you do not view them as equal, then there is no inconsistency. How similar do things have to be before you think that consistency requires that they be treated equally?
9.11.2008 2:12pm
Mark Field (mail):

One assumes that in the US, even more than in the EU, the basic principle that citizens can freely travel throughout the country for any lawful purpose would not be easily overruled by statute. So are there US precedents about Federal law legislating interstate travel? (Other than transporting a minor across state lines without permission. That one I know of.)


I think Oren may have been too quick in his answer. US courts do recognize the right to travel. It's possible that the commerce clause can override that (and an anti-abortion Court might so hold), but I don't think it's all that clear. More likely is a scenario in which abortion is banned nation wide.
9.11.2008 2:21pm
Oren:

Thanks for your concise answer. May I ask which provision in the constitution you had in mind as the legal basis for banning interstate travel for the purposes of obtaining an abortion?

Commerce clause, duh. Not that I agree. Consider the following Federal laws:
(1) It is illegal to cross state lines with a minor for the purposes of avoiding state regulations concerned parental notification of abortions. This is despite the fact that it would be perfectly legal in the destination state.

(2) The Mann act makes transportation across state lines for "immoral purposes" a crime. See also, here.

(3) It is a federal crime to cross state lines to avoid statutory rape charges, again, even if the conduct is legal in the destination state.

HTH.
9.11.2008 2:34pm
Reality Czech (mail):
Oh wait, babies in utero supposedly aren't people, I forgot.

Are they persons under the 14th Amendment? They are neither born nor naturalized.

Are they persons in the medical sense? There is no neurological activity in a 16-cell blastocyst because there are no neurons.

You appear to be assuming your conclusion.

One of the problems is women who use abortion as their primary method of birth control.
Your second example (woman who sometimes forgets to take pills) contradicts your assertion.

Downs Syndrome correlates with unusual mental development and a predisposition to neurodegenerative disorders
And a host of physical abnormalities which require painful surgery to correct.
9.11.2008 2:44pm
Oren:
Mark, US citizens have the right to travel, in the sense that they cannot be confined to a city/state. Congress can still regulate the means and reasons for traveling interstate. How else would the laws against evading parental notification be justified?
9.11.2008 2:44pm
Dilan Esper (mail) (www):
That's one theory. On the other hand, the predictions vis-a-vis the effects of disconnecting the sex act from procreation made by Mr. Wojtyla (a driving force behind the success of Vatican II and the defeat of fascism locally and communism globally - i.e. a man of wide-ranging liberal accomplishment) have proven far more prescient than those offered by Mr. Esper's colleagues.

I can say without any doubt that I've forgotten more about sex than Mr. Wojtyla ever knew.
9.11.2008 3:17pm
ReaderY:

And we are to believe that increasing the proportion of sufferers of disease is the moral high ground?


Well, right now, the main thing doctors do these days is to increase the proportion of sufferers of disease. The more easily cureable diseases are mostly cured, and most of what's left is currently incurable -- cancer, diabetes, AIDS, heart diseases, and a bunch of other stuff.

When doctors ply their trade, they are usually prolonging someone's life or temporarily alleviating symptoms without curing the underlying disease, which means they are increasing the proportion of disease suffers in the population. Without doctors, the proportion of sufferers in the population would be much less.

If one really believes that increasing the proportion of suffers in the population is immoral, we ought to ban or discourage medicine, at least the kind of medicine that alleviates and manages without curing (which again is most of it these days. And if we're not willing to think of medicine as immoral, the idea that we don't want to increase the proportion of the population who is suffering pretty much falls to the ground. It's a bogus idea. If we think about it even for a minute, we'll realize that nobody actually believes this.

The fact of the matter is, virtually all of us are suffering from something or other. To live is to suffer. The idea that sufferers are people who are somehow different from the rest of us just isn't so.
9.11.2008 3:48pm
PaulD (mail):
If Roe v. Wade were overturned I think it is a safe bet that very few states would enact complete bans on abortion. Moreover, I have read that abortions are very difficult to obtain today, in those states that might consider banning abortions because social pressures have driven out abortion providers. I personally like the approach that Governor Palin suggested in her response to a questionaire from the Anchorage Daily News:


"QUESTION: If Roe v. Wade were overturned and states could once again prohibit abortion, in your view, to what extent should abortion be prohibited in Alaska?

PALIN: Under this hypothetical scenario, it would not be up to the governor to unilaterally ban anything. It would be up to the people of Alaska to discuss and decide how we would like our society to reflect our values."


http://www.adn.com/sarahpalin/story/510378.html
9.11.2008 3:59pm
gattsuru (mail) (www):
And we are to believe that increasing the proportion of sufferers of disease is the moral high ground?


That's a rather personal question, and I'm not aware of any particularly skilled moral stance on the mater capable of universally capable of driving others toward its side.

That said, I would not consider the alternative a particularly good policy. If your interest is less the treatment or curing of preexisting conditions, and more getting rid of individuals, there's a lot of potential for rather questionably ethical solutions.
9.11.2008 4:06pm
Mark Field (mail):

Mark, US citizens have the right to travel, in the sense that they cannot be confined to a city/state. Congress can still regulate the means and reasons for traveling interstate. How else would the laws against evading parental notification be justified?


You may be right; I don't have a good answer to your question except to note that the result might differ if minors weren't involved. I'd just be slightly less certain about whether such a law would survive challenge.
9.11.2008 4:28pm
Oren:
ReaderY &Gattsuru, the difference of course is that medicine is generally only practiced on the consenting whereas children are brought into the world without such constraint. Nobody asks to be born.
9.11.2008 4:58pm
tsotha:
paul lukasiak: Abortion is one of those 10th Amendment issues --- a non-enumerated right "reserved...to the people." The Constitution does not allow the government to regulate people's medical decisions, any more than it provides a 'right to have an abortion'.

A right not enumerated is implied by the 10th amendment? Any right you can dream up? This line of thinking is patently ridiculous, and if it's not I have a right to a hot girlfriend... no, two hot girlfriends. And I want them now.

PaulD: If Roe v. Wade were overturned I think it is a safe bet that very few states would enact complete bans on abortion.

That is a pretty safe bet, given that only 30% of the states had a complete ban on abortion in 1972. My guess it it would probably be even fewer.

There's no support for a right to abortion in the constitution, nor is any basis for thinking Congress has the power to make it illegal. In tsotha's perfect world Roe is reversed and any attempt to institute a national ban is struck down.
9.11.2008 6:55pm
martinned (mail) (www):
@Oren: Thanks, that makes sense. (Well, as much as law ever makes sense.)

Curiously, I guess that means that EU citizens have more freedom to travel from one EU Member State athan US citizens have to travel between states. (Art. 45 Charter sums it up nicely.)
9.11.2008 8:14pm
Oren:
Yeah, it's effed up if you ask me. These ought to be a presumption that no state can bind its citizens actions in other states . . .
9.11.2008 8:17pm
David Warner:
Dilan,

"I can say without any doubt that I've forgotten more about sex than Mr. Wojtyla ever knew."

All the more remarkable that he got the results of the Sexual Revolution right, and you wrong. Perhaps you had too much skin in the game...
9.11.2008 10:51pm
Dilan Esper (mail) (www):
David:

The results of the sexual revolution were that a lot more people are having a lot more fun without having to worry about conceiving children.

Perhaps if Mr. Wojtyla had partaken in it openly, he would understand something about the topic and why that is a very good thing, especially for women. Even if he remained ignorant about the larger questions, he would have at least had a better time.

But since he didn't (and because he has no actual pipeline to God), he did not know what the heck he was talking about, and neither did his successor. As a result, you get sexual doctrines that are completely inapplicable to what goes on in the real world.
9.12.2008 2:05pm