Asymmetrical Information

Riddle me this, Batman:

Besides the short term political high of sticking it to Bush, what could they have hoped to gain by these actions? Sure, it feeds their angry base, but these people are well fed already.

Am I missing some strategery here?

I think the goal is to hold off filling as many judicial appointments as possible until they can regain executive power and fill the federal bench with Roe friendly judges.

I imagine that one or two hispanic groups will hear presentations about the hispanic judge blocked by the Democrats come the '04 campaign.

Bob

Boy, how the R's must be relieved.

The greatest fear of the R's is that they will indeed manage to get another Scalia or two on the Supreme Court. Rhenquist and O'Connor are sticking around for Bush II after seeing the Estrada circus and so are the lefties on the court. Lucky R's!

And Roe is the issue here, as it always is in judicial confirmation (though it shouldn't be). If the American public saw Roe fall, R senators and congressmen in R-leaning states would see abortion restrictions passed by their state legislatures and that would be the beginning fo the end.

The majority of American women are pro-life in the convenient situation where Roe protects them and they can vote their feelings over their interests. But when Roe goes, everything changes. Soon Democrats would win decisive 60% to 80% majorities in R-leaning states' legislatures and congressional delegations in the backlash. The Senate would have 65 to 75 Democratic seats for a few sessions. Republican presidential nominees would win a total of 5 electoral votes in 2008 and 7 in 2012 (Utah alone in both cases).

Republicans don't want that. And that's why we shouldn't look for any new Scalias.

You all are talking like Estrada is the only judge that's been nominated. That's clearly not true. I think (although I don't have numbers to prove this) that most of Bush's nominee's have been confirmed without much trouble. Perhaps the Democrats don't want him confirmed because he's not actually a moderate judge.

Newts comments are spot on -- If Roe were overturned, so too would be the Republican majority. A much wiser political strategy for the Republicans is to whittle Roe away "partial-birth style."

But Democratic opposition to radical appointees (like Estrada) goes far beyond abortion politics. Basic American freedoms are threatened by judges in the Borkian tradition.

To greatly simplify, such judges view the ninth amendment as an invitation to anarchy and would gladly do away with the protection of private behavior which it affords.

I don't know any liberals that feel triumphant. Vindicated is more like it.

We know too well how Senate rules & procedures may be used to frustrate the will of a majority. It was Orrin Hatch personally, and Repulicans generally, who used dilatory tactics to prevent many Clinton nominees from taking the bench.

Complaining about the TAT, while forgetting and forgiving the TIT, is not very astute. Over time as judicial slots go unfilled, law & order will be the victim of this game. I can't imagine anyone, conservatives especially, cheering that outcome.

I must have missed it - in what way was Estrada radical? Or is this some use of the term 'radical' with which I am unfamiliar?

Always willing to learn...

The same way Scalia and Thomas are 'judicial activists'.

Newt, I beg to differ.

"All politics is local" - an old saw, but with sharp teeth. State legislators are closer to their consituents and are more likely to vote their interests. Abortion restrictions are unlikely to pass in heavily Democrat states.

The last polls I've read show that the majority of Americans favor some restrictions on abortions and generally deplore our current situation where abortion is practiced as a form of birth control.

And the poltically principled arguments against Roe are that it SHOULD be in the province of the states.

And "R's" generally are more concerned with good government than personal power -- as opposed to the "D"'s.

I consider opposition to the idea of judicial review to be a radical position. Judicial review of legislation is an integral part of our constitutional republic.

And this should not be a partisan political issue. Any judicial appointee who expresses opposition to judicial review should be treated with a very high degree of skepticism by Republicans and Democrats alike.

It's related to the Borkian ninth amendment position, which is that the legislative majority rules, and whatever they do must be ok, and the only acceptable way to challenge legislation is by electing new legislators. Judicial Review is out of bounds.

An unchecked Executive and/or Legislature isn't conducive to economic growth or to a well functioning civil society.

Republicans fought Clinton like banshees. This is no different. This is just the process working itself out. Politics is war without guns (if all goes well). I will say that the more entrenched each side becomes, the less it serves the country as a whole.

As that happens, we begin to lose power until we really become the EU's whipping boy. Liberals don't just disappear because conservatives are annoyed with them and there is little reason to change liberals' minds based on current events.

Conservatives will be happy to have the filibuster when liberals control the reins, whether it happens sooner or later. The pendulum always swings.

I don't seem to remember the Republican MINORITY in the Senate blocking very many of Clinton's judges. Now, when they had the MAJORITY, they did.

Similarly, it wasn't so much the Democrat PLURALITY in 2002 than their MINORITY blocking that angers people.

Norman Rogers.

Newt is right. The Democrats are safeguarding the right to abortion and saving the Republicans from themselves. Were Roe to be overturned by judges like Estrada, pro-life Republicans would immediately pressure their politicians to enact tough restrictions on abortion. The pols would resist, and the fight would drive moderate, pro-choice Republicans over to the Democrats--or, at least, away from the Republican Party. It would be a bloodbath for the GOP. Sometimes, I wish the anti-abortionists would get their way just to provoke this kind of GOP meltdown. Alan Dershowitz, amoung others, thinks that Roe is the only thing that has kept the fragile GOP alliance together for the past 30 years.

Those with a little longer memory may remember the "blue slip" rule which was used to defeat many of Clinton's nominees. The "blue slip" rule allows 2 -- TWO -- Senators to veto a nominee. On the other hand, a filibuster requires 40 -- FOURTY -- Senators to veto a nominee.

It seems to me that the filibuster is a reasonable protection of minority interests. Super-majority requirements for a lifetime appointment may not be such a bad idea. A super-majority requirement clearly favors "moderate" nominees.

The "blue slip" rule however requires near unanimity, which almost never occurs. Rules like this elevate the most extreme elements to the position of a dictator, and may prevent even the most moderate nominees from gaining approval.

However much you disagree with the filibuster of Estrada, you must admit the filibuster is more consistent with Democratic theory than was the "blue slip" rule used to scuttle many of Clinton's appointees.

Jane Galt:

For one thing, by the standards of international abortion law, Roe is the radical position

No it isn't. Legal abortion is available in other industrialized democracies pretty much as freely as it is in the U.S. The formal wording of their laws may suggest greater restriction, but in practise the exceptions for health (including mental health), economic burden and the like are interpreted so broadly that they generally allow for abortion even late in pregnancy. Moreover, only about 1% of abortions in America are performed during the third trimester, and only about 12% during the second and third trimesters, so even if abortion were restricted to the first trimester alone, and the health and life provisions eliminated entirely, it would have no effect on the vast majority of abortions performed in the U.S.

Democrats calling for moderate judges -- and then defining moderate as requiring a view of abortion law that is endorsed only by a small minority of citizens -- don't sound too convincing.

There's no clear evidence that Roe is endorsed by only a small minority of citizens. Abortion polls are notoriously sensitive to wording, and often give sharply conflicting results.

Stay within the scope of your blog. You're talking about a United States judicial nominee not an international court judge nominee. Roe is a moderate position on abortion in the United States.

Why should I care what the standards of international abortion law are? If I let the world norm dictate my opinion I would have supported France's position on the Iraq war.

Here is a table that summarizes abortion law around the world.

Thanks for the chart Don P. It would be interesting to see a population weighted analysis of the chart (i.e. the rules in China effect more people than the rules in Lichtenstein).

It would also be interesting to see a breakout of the "developed" vs. the "developing" world. I'm guessing the developed world is far more permissive of legalized abortion. Guess I'll have to actually read the chart!

Don P: In how many states do you think the gist of Roe would pass as legislation? In how many would it pass if put up to the popular vote, as a referendum (I know that in many states it couldn't, because there's no referendum process, but I'm in California; bear with me.)

My guess (and it can't claim to be more than that) is that a handful of states, left to themselves, would enact something very like Roe, and the rest something more restrictive, but well short of a total ban. It would be different from what we have now — not radically different (you're right there), but sufficiently so that if Roe is lousy law in a legal sense (and if it isn't, why have a generation of legal scholars spent unnumbered hours trying to come up with other and better rationales for the same result?), why not give the people a chance to hash it out?

Doug Purdie: I think the two writers of this blog are entitled to determine what "the scope of this blog" is for themselves. But to your point, bear in mind that America is constantly accused of being "out of step" with the other industrialized nations on matters like health care, vacation time, gun control, the death penalty, &c. Here's an instance where Europe is "to the right" of America; do you wonder that people tired of being told that all civilized opinion (meaning Europe) is our left leap at it?

Boban - Your description of the "blue slip rule" is fairly accurate but in a very misleading way. Historically, when a judge is nominated from a particular state, say California, the two California Senators would be "consulted" under the theory that they should know better than those not from their state the merits of the nominee. This consultation process, in effect, allows either Senator from a nominee's home state to veto the nomination.

The blue slip process did not grant any two Senators a veto -- just the Senators from a nominee's home state. This is far different than allowing 40 Senators to block a vote on the merits of a nominee. Until this most recent battle, a filibuster was NEVER used to block a nominee to an appellate court. Not once. Not ever. Now, in the space of less than two years, we have had several nominees blocked by this never-before-used-process. Such is the radical nature of the Democrats' strategy. As Jane warns, remember this when the situation is reversed. Republican Senators will not, their constituents will not let them, allow a Democrat president's nominees to go through.

Everyone decries the lack of civility in our nation's politics. Frequently we point to these judicial appointment battles as the primary example of what's wrong. Just remember, when your nominee's being roasted in these flames, it was the Democrats who first brought gasoline and matches to the party.

Boban - Your description of the "blue slip rule" is fairly accurate but in a very misleading way. Historically, when a judge is nominated from a particular state, say California, the two California Senators would be "consulted" under the theory that they should know better than those not from their state the merits of the nominee. This consultation process, in effect, allows either Senator from a nominee's home state to veto the nomination.

The blue slip process did not grant any two Senators a veto -- just the Senators from a nominee's home state. This is far different than allowing 40 Senators to block a vote on the merits of a nominee. Until this most recent battle, a filibuster was NEVER used to block a nominee to an appellate court. Not once. Not ever. Now, in the space of less than two years, we have had several nominees blocked by this never-before-used-process. Such is the radical nature of the Democrats' strategy. As Jane warns, remember this when the situation is reversed. Republican Senators will not, their constituents will not let them, allow a Democrat president's nominees to go through.

Everyone decries the lack of civility in our nation's politics. Frequently we point to these judicial appointment battles as the primary example of what's wrong. Just remember, when your nominee's being roasted in these flames, it was the Democrats who first brought gasoline and matches to the party.

Michelle Dulak:

Don P: In how many states do you think the gist of Roe would pass as legislation?

Most of them.

In how many would it pass if put up to the popular vote, as a referendum

Most of them.

It would be different from what we have now — not radically different (you're right there), but sufficiently so that if Roe is lousy law in a legal sense ...

Even if abortion would be significantly more restricted in the absence of Roe, that obviously doesn't mean that Roe is bad law. The whole point of having a Bill of Rights and independent judiciary empowered to interpret it and strike down popularly-enacted laws that violate it is to protect basic rights from the tyranny of the majority.

(and if it isn't, why have a generation of legal scholars spent unnumbered hours trying to come up with other and better rationales for the same result?),

Because that's what legal scholars do. If Roe is "lousy law," why did almost 1,000 law professors sign an amicus brief in Casey affirming their belief that abortion is a fundamental constitutional right as delineated in Roe?

why not give the people a chance to hash it out?

Because abortion is a constitutional right.

You make it sound like the "blue slip rule" was rarely used. In point of fact, Republicans used it far more frequently than Democrats have used the filibuster.

And I am not afraid of a Republican filibuster because I am not interested in having radical appointees -- either left or right -- on the bench. And the public would not support a filibuster of such a nominee. (Which of course is why the Democrats have filibustered only the most radical of Bush's nominess.)

Only those committed to appointing extremists to the federal courts are bothered by the threat of a filibuster.

David Walser:

Just remember, when your nominee's being roasted in these flames, it was the Democrats who first brought gasoline and matches to the party.

Nonsense. The Republicans blocked almost 60 of Clinton's judicial nominees. The Democrats have blocked 4 of Bush's.

The gasoline and matches were brought by the Republicans.

It would also be interesting to see a breakout of the "developed" vs. the "developing" world. I'm guessing the developed world is far more permissive of legalized abortion.

Yes, in general, abortion is much more restricted in the developing world than in the developed world, and much more restricted in countries with authoritarian governments than in countries with democratic governments. The chart I linked to shows that the legal availability of abortion in most of the industrialized democracies is comparable to its legal availability in the United States.

Boban, the Democrats used it too. The blue slip has been common for at least decades, possibly centuries. It wasn't a Republican invention.

Don P, given that Roe is

a) substantially to the left of what Americans support on abortion

b) On the left end of the international community (China is hardly a proud example for all but the moral vacuums on the pro-choice side of the debate)

c) Allows for virtually no restrictions on abortion

by what metric -- other than "it's what I believe" -- is it "moderate", as in "in the middle" or "in the majority"?

Jane Galt:

Don P, given that Roe is a) substantially to the left of what Americans support on abortion

As I said, that's not a "given." Abortion polls sometimes provide conflicting results and are notoriously sensitive to wording, but overall support for abortion rights is strong and has remained more or less constant for the past few decades.

b) On the left end of the international community (China is hardly a proud example for all but the moral vacuums on the pro-choice side of the debate)

This is a silly standard. Many policies that are the norm in liberal democracies--like freedom of speech and easy access to abortion--are "on the left end of the international community," because so many of the world's countries are authoritarian. America's abortion laws are comparable to those in most other industrialized democracies. They're not radical or extreme or left-wing. See the chart I linked to earlier.

c) Allows for virtually no restrictions on abortion

As I said, abortion law in America is comparable to abortion law in most other industrialized democracies. In theory, there are significant legal restrictions on abortion in both America and most of those other countries. But in practise, because the grounds on which abortion is permitted are so vague and open-ended ("health," "economic burden," etc.) abortion is effectively available on demand in most of these countries, including the U.S. The lesson of this is that abortion is by its nature not well-suited to regulation through criminal law.

Don P: Almost everyone loves the regime delineated in Roe, but if Roe falls we will be subject to the "tyranny of the majority." Or: this is what we want, and unless the courts prevent us, we'll do something else.

I do understand the rationale of a Bill of Rights. It is wise to put a few things explicitly beyond the pale of discussion, because people in a panic might do things that society has a right to decide, beforehand, that they shouldn't do.

But abortion isn't in the Bill of Rights. In fact, some commentators don't even want to locate the right there. For some it's in the 14th amendment, as an Equal Protection issue. For others, its in the 13th (pregnancy as "involuntary servitude"). Within the Bill of Rights I've seen it defended through several clauses of the First Amendment and through the Ninth & Tenth (this is besides the "emanations & penumbras" bit of the actual ruling). Any day now someone will discover that the fetus is a state agent acting under cover of law, engaged in an illegal search and seizure of the womb. Maybe someone's done that one already.

You say that all this speculation is because that's what legal scholars do. I don't think so. There is a ton of legal scholarship reconsidering cases, obviously, but are there many where dozens of scholars pile on with totally different explanations of why the result is (of course) right, but the rationale is wrong? The only other one I know of is Brown v. Board of Ed., though I am not a lawyer nor a law student, & if I'm wrong I will happily accept correction.

Here is an example of a recent (May 2003) poll in which a majority of respondents expressed support for Roe v. Wade

Quote:

"ABC and Time/CNN polls asked directly about support for the Roe v. Wade decision and found 54 percent to 44 percent and 55 percent to 40 percent support, respectively. In addition, the NBC poll asked whether the Supreme Court should reverse Roe v. Wade and found strong opposition to this course (58 percent opposed to 35 percent in favor)."

Michelle Dulak:

Don P: Almost everyone loves the regime delineated in Roe,

Well, not "almost everyone." But most people, yes.

but if Roe falls we will be subject to the "tyranny of the majority."

Yes.

I do understand the rationale of a Bill of Rights. It is wise to put a few things explicitly beyond the pale of discussion, because people in a panic might do things that society has a right to decide, beforehand, that they shouldn't do. But abortion isn't in the Bill of Rights.

Well, it's in the 14th Amendment. It's one of the many unenumerated rights protected by the Constitution.

In fact, some commentators don't even want to locate the right there. For some it's in the 14th amendment, as an Equal Protection issue. For others, its in the 13th (pregnancy as "involuntary servitude"). Within the Bill of Rights I've seen it defended through several clauses of the First Amendment and through the Ninth & Tenth (this is besides the "emanations & penumbras" bit of the actual ruling).

You seem confused. The famous "penumbras" phrase is from an earlier ruling, not Roe. Roe followed a long line of earlier cases, stretching back over decades, that established constitutional rights in the areas of sex, marriage, reproduction and family life. Many rights are anchored in more than one provision of the Constitution, and the Supreme Court routinely cites different parts of that document when upholding them.

Don P: Of course the "emanations & penumbras" bit was Griswold, not Roe. Roe merely cited the privacy right announced in Griswold (and established through a line of cases that included, among other things, the right to have your children taught a foreign language). I am sorry for the error — that's what I get for trying to post too quickly!

As to how the Constitution can protect rights it declines to mention . . . yes, I know the 9th & 10th amendments, and if you can show me a way of using them that doesn't involve people of a particular class and a particular training deciding what rights there ought to be for anyone else, I might actually agree with you.

Michelle Dulak:

Don P: Of course the "emanations & penumbras" bit was Griswold, not Roe. Roe merely cited the privacy right announced in Griswold (and established through a line of cases

Yes. And Roe was the natural extension of that line of cases, which applied the constitutional right to privacy to other areas of sex, marriage, reproduction and family life, including the right to use contraception, the right not to be sterilized for committing a crime, the right to marry a person of a different race, and the right to educate one's child at a private school. Roe was not some radical new legal doctrine, it was the natural development of an existing branch of constitutional law established in a long-standing string of earlier cases.

that included, among other things, the right to have your children taught a foreign language

I assume this is a reference to Meyer v. Nebraska. Your dismissive characterization of that case as involving merely the right to teach your children a foreign language conceals the much more basic right that the court upheld. The law at issue was passed during America's stuggle with Germany during World War I. It was rooted in suspicion and aimed at suppressing the culture and heritage of Nebraska's German minority. It wasn't just about language, it was about a systematic attempt to suppress an unpopular minority.

As to how the Constitution can protect rights it declines to mention . . . yes, I know the 9th & 10th amendments, and if you can show me a way of using them that doesn't involve people of a particular class and a particular training deciding what rights there ought to be for anyone else, I might actually agree with you.

The 9th and 10th Amendments necessarily require judges to decide (or judge, hence their name) what rights they protect, because those rights are unenumerated. If you don't like this, you are free to agitate for the repeal of those Amendments, but you cannot simply ignore them just because you don't like them.

re David and Don's "gasoline and matches" argument:

The Democrats lit the fire back when Reagan was President (Bork, etc.) The Republicans threw in a few cans of gasoline in during the Clinton administration. And now the Democrats have parked a tank truck of nitroglycerine next to the fire!

OTOH, what's worse, these big public fights, or the blueslipping that's killed far more nominations without much of the public ever being aware of it? Among other things it allowed old racists in the Senate to block every nomination of a black who happened to be from their state, with no public outcry. At least there were grounds for argument about Bork, Estrada, etc.; these blue slips did not have to give any reason at all. It's a 19th Century custom that has long outlived it's reason - Senators no longer can personally know every prominent person in their home state, nor are Senators representing their state government anymore.

Almost 60 judicial nominee blocks by the Republicans, versus 4 by the Democrats. There is no comparison. The behavior of the Republicans is far, far, far worse than that of the Democrats.

"The behavior of the Republicans is far, far, far worse than that of the Democrats."

Wow. They pay you for that? That kind of blind love for a bunch of old white men can't be natural.

From the outside (libertarian) looking in, I would say that the two parties use tactics that are equally distasteful, with (historically) equal frequency. Their little hissy fits, red-flag issues, and rank partisanship give cover to the fact that they all belong to the same group: incumbants. They all want the same thing: our money. They all answer to the same god: re-election. Of course, it has been this way in this country since Washington left office.

You seem like a smart fellow, but you have taken the bait. Waste your time, energy, and intellect arguing about the insolvable, minute details of killing children. While you are occupied, they will pass some more heinous laws to buy their next round of elections from the weak and ignorant.

-Donut

ps. Please don't try to use the sacredness of the constitution in your arguements about Roe, when in the same thread you are applauding a new extra-constitutional super-majorty requirement that rewrote Article 2, Section 2.

Jane, while the general thrust of your analysis is entirely plausible, the discussion of whether Roe's trimester approach is out of touch with international laws is a little bit off. In 1992, in Planned Parenthood v. Casey, the Supreme Court abandoned the trimester framework and replaced it with an "undue burden" test. Without getting too technical, an undue burden on a woman's right to an abortion (the part of Roe that Casey retained), which will be struck down, is basically what Justice O'Connor thinks it is.

I consider opposition to the idea of judicial review to be a radical position.

Jefferson was opposed to the idea of judicial review. Of course, he would have gladly worn the label "radical".

Because abortion is a constitutional right.

Really? Just where in the Constitution is this right found? This is what makes Roe itself so radical - the naming of abortion as a Constitutional "right". Abortion was already legal in a number of states before Roe and would remain so in even more states if Roe were overturned. Calling abortion a "right" as opposed to simply making it legal is to present it as a moral good. It's not a moral good. Don P, you complain about a tyranny of the majority. What about the tyranny of a judiciary that usurps power from democratically elected state legislatures?

Were Roe to be overturned by judges like Estrada, pro-life Republicans would immediately pressure their politicians to enact tough restrictions on abortion.

He was nominated to the appellate bench. The only people who have a say in whether or not Roe is overturned are Supreme Court judges.

Two quick responses to things said above:

1) While polls are never completely reliable, Americans appear to be fairly evenly divided on abortion, with a trend in the pro-life direction. Most recently (as I blogged about here), the liberal Center for the Advancement of Women released a poll -- performed by Princeton Survey Research Associates -- showing 1) a clear trend in the pro-life direction, and 2) that the majority of American women would actually ban abortion altogether. The Center was rather alarmed at the results, which gives one confidence that they were not trying to skew the poll in the pro-life direction.

Someone cited a poll that asked people whether they supported Roe and whether they thought Roe should be overruled. But polls that ask about Roe should be taken with a grain of salt. If you undertake a careful comparison of 1) polls that ask about Roe, and 2) polls that ask specific questions about the circumstances in which abortion should be legal, you can easily deduce that many Americans are not aware of the extent to which Roe and Casey protect abortion.

For instance, I blogged last summer about a Gallup poll that asked first whether people thought abortion laws should be stricter. A majority of people said no. Then the poll asked whether abortion should be legal in the second trimester, or if the woman can't afford a child. By even greater majorities, people said that yes, abortion should be illegal in those circumstances. In other words, there was a broad swath of people in the middle who claimed to believe that abortion laws should not be stricter, but when questioned more specifically would indeed make abortion laws much stricter than they are or ever could be under the Court's jurisprudence. Such people are obviously not well-informed.1

2) Someone named Don claimed that most countries protect abortion to the same extent as the United States. In support he cites a webpage by some person or organization with whom I am not familiar. I would direct him to the more scholarly work of Harvard law professor Mary Ann Glendon, who has written both a book and various articles noting that the U.S. Supreme Court's abortion jurisprudence is the most liberal in the Western hemisphere.

1 For more on how Americans are misinformed about Roe, see Stuart Taylor, How the 'Conservative' Supreme Court Leans to the Liberal Side, National Journal, July 8, 2000, p. 2207.

A quote:

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

Such disparities may reflect some confusion about exactly what the Court actually did in Roe, and what would happen if the decision were overruled. Small wonder, when journalists such as Time's Eric Pooley tell their readers that by "overturning Roe vs. Wade," a more conservative Court would "ban abortion." In fact, no Justice in history has suggested that he or she would ban abortion. As all scholars and most journalists know (but rarely say), overturning Roe would ban nothing, but rather leave it to elected officials to decide how (if at all) to restrict abortion. And most states would continue allowing fairly broad abortion rights.

More to the point, Jane is absolutely correct when she writes: "Democrats calling for moderate judges -- and then defining moderate as requiring a view of abortion law that is endorsed only by a small minority of citizens -- don't sound too convincing."

The Center for the Advancement of Women poll mentioned above asked women, "Which one of the following comes closest to your own view on abortion?" To their dismay, only 30% of women chose the (Democratic) position: "It should be generally available to those who want it." (See page 12 of the Executive Summary.)

Getting back to an earlier point, I asked how Estrada could be described as 'radical'.

Boban helpfully posted that 'opposition to the idea of judicial review [of legislation]' was radical - and I would agree.

However, the dots that remain unconnected in my mind are the ones that show Estrada holds such a belief - indeed, my impression is the opposite.

I can describe any number of radical beliefs - but to describe you as radical, I must demonstrate that you hold such beliefs, either by your statements or your actions.

Sorry, if asking for completion of a logical argument is a radical idea.

Still willing to learn...

Jane Galt wrote:

It seems to me that we're talking about two or three issues here, of which Roe is by far the largest. And the problem with that argument is, there is no moderate position on Roe. For one thing, by the standards of international abortion law, Roe is the radical position -- few other industrialized nations (maybe none) allow abortion as late as Roe does, or without substantial intervention, such as counseling, by the state. For Roe, which allows abortion up to three months with no restrictions, and into the third trimester with very few, to be moderate, the liberal position would have to be forced abortion of viable fetuses.

I agree that Roe was wrongly decided and when you think about it, was a pretty silly decision. Overturning it would merely return legislation about abortions to the State level where they constitutionally belong and would probably have the effect of a more “center-Right” legislation such as keeping it legal in cases of rape, incest, and to protect the life of the mother while banning its use for birth control (which is President Bush’s position); parental notification for minors (with some exceptions in cases of child abuse); ending taxpayer funding; and banning late-term abortions that aren’t medically necessary to protect the life of the mother.

On this issue, Republicans probably would benefit more than Democrats since they are in the untenable position of supporting taxpayer funding for abortion (which negates any claim they have of being “pro choice”), opposing even common-sense restrictions like parental notification, and while they may want to try and pretend that abortion is usually about cases of rape, incest, and saving the life of the mother – the reality is that most abortions are merely for birth control purposes and most people are perfectly willing to put restrictions on abortion when used merely as a convenience.

"Because abortion is a constitutional right."

Well, then why in the hell aren't other medical procedures, drugs, etc. a constiutional right? Why is ending a pregnancy, alone among medical treatments, considered a constitutional right?

Gardner:

Jefferson was opposed to the idea of judicial review.

No he wasn't.

Really? Just where in the Constitution is this right found?

As I already said, in the 14th Amendment.

This is what makes Roe itself so radical - the naming of abortion as a Constitutional "right".

There was nothing radical about it at all. As I have already explained, twice, Roe was merely the natural development of a series of prior rulings establishing constitutional rights in the areas of sex, marriage, reproduction and family life stretching back over decades. Most critics of Roe don't know what they're talking about.

Calling abortion a "right" as opposed to simply making it legal is to present it as a moral good. It's not a moral good.

No, a right is not the same thing as a moral good.

Don P, you complain about a tyranny of the majority. What about the tyranny of a judiciary that usurps power from democratically elected state legislatures?

As I have already explained, the whole point of having a Bill of Rights and an independent judiciary empowered to interpret it and strike down statutes that violate it is to act as an anti-democratic check on the power of the other branches of government. That's how the system is meant to work. It's part of the system of checks and balances that were built into the American system of government. If you don't like it, you are free to agitate for a change in the structure of our government, or move to another country, if they will take you.

Someone named Stuart Buck:

2) Someone named Don ...

Yes, that would be me, Don P.

... claimed that most countries protect abortion to the same extent as the United States. In support he cites a webpage by some person or organization with whom I am not familiar. I would direct him to the more scholarly work of Harvard law professor Mary Ann Glendon, who has written both a book and various articles noting that the U.S. Supreme Court's abortion jurisprudence is the most liberal in the Western hemisphere.

Mary Ann Glendon's work comparing international abortion law is almost 20 years old and is way out of date. As I have explained, and as the link I provided clearly shows, abortion law in the U.S. is comparable to abortion law in most other industrialized democracies. Abortion on demand throughout most of pregnancy is effectively available in most of these countries.

Even your narrower claim "the U.S. Supreme Court's abortion jurisprudence is the most liberal in the Western hemisphere" is false. Abortion jurisprudence in Canada, for example, is more "liberal" than that of the U.S. As a result of a set of Canadian federal court rulings, there is little or no actionable statutory restriction on abortion in Canada at all.

Ken:

Well, then why in the hell aren't other medical procedures, drugs, etc. a constiutional right? Why is ending a pregnancy, alone among medical treatments, considered a constitutional right?

Some other medical procedures may also be constitutional rights. I'm not sure which, if any, other medical procedures have been tested in this way.

Don P: I wasn't dismissing the deeper issues regarding Meyer v. Nebraska (which are exactly as you say), just alluding to the weirdness of its being drawn into a "line" of cases most of which have to do with sexual autonomy. I can see the moral arguments (if not the Constitutional ones) for letting parents educate children as they like; but I don't see that they have anything to do with "privacy."

I am still trying to understand where the abortion right is. In the 14th Amendment? Do you mean equal protection, or due process?

Quick question: when did American women gain the right to abortion? (I mean, "when did they have the right" in your theory, obviously, not "when did it start to be enforced?") Was it when the Bill of Rights was enacted? When the 14th Amendment was enacted? When Roe was announced? Or was the right floating out there, unenumerated and unacknowledged, before there even was a US Constitution, let alone a Bill of Rights or a 14th Amendment?

Don P - Your argument that the constitution provides a right to abortion (that the Supreme Court has ruled that there is such a right) does not answer the main objection raised by those who disagree: The Supreme Court should never have found (a/k/a made out of whole cloth) that the constitution protects a right to abortion. The fact that it is the "natural outgrowth of prior [bad] decisions" does not alter the fact that Roe, itself, is a poorly reasoned and poorly grounded opinion. It MAY be the right public policy. Certainly, the members of the Court thought so at the time, but it has no real basis in the text of the constitution. Neither, by the way, does the recent decision (overturning a prior Supreme Court decision just 10 years old) finding a constitutional right to sodomy. Again, the right public policy result, but a very poor job of applying the law.

Of course, you may think the Court was right on both policy and the law. If so, point to and apply the specific language from the constitution that provides for a right to abortion or sodomy -- without appeal to any judicial opinion coming after 1950. It can't be done.

Your response to Ken, above, that "Some other medical procedures may also be constitutional rights. I'm not sure which, if any,..." gives a clue as to why this line of Supreme Court "reasoning" is so poor. Shouldn't we be able to read the constitution and determine, with some accuracy, which medical procedures are covered and which are not? Here's a practical example: My youngest daughter will turn 15 next month. Per Roe, she is old enough to get pregnant and have an abortion with out my consent or knowledge. On the other hand, give her a tattoo or pierce her ears without (her mother's or) my permission and you could end up in jail. On what planet does THAT make logical sense? The constitution protects abortion but not tattoos? You'd think the 1st amendment might be stretched to cover body piercing!

Bottom line: Roe and similar policy driven decisions have so distorted the constitution's meaning it now protects abortion but allows regulation of tattoos. If it can be stretched that far, the document means what the current Court says it does -- which means it has no real meaning. Next thing you know, the Court will be determining who's President of the United States!

Don P. claims:

Mary Ann Glendon's work comparing international abortion law is almost 20 years old and is way out of date. As I have explained, and as the link I provided clearly shows, abortion law in the U.S. is comparable to abortion law in most other industrialized democracies. Abortion on demand throughout most of pregnancy is effectively available in most of these countries.

It’s something of a puzzle why the public has never really grasped how extreme the legal treatment of abortion is in the United States. (Even Sweden, the poster country for women’s equality and liberal attitudes toward human sexuality, strictly regulates abortion after the eighteenth week of pregnancy.)

The chart linked by Don P. has lots of colors and looks impressive, but I have no reason to think that it is accurate at all. For example, the chart claims that Germany has abortion on demand, with no qualification regarding trimesters, etc. The German Embassy, however, appears to have a more qualified view:

After years of conflict on the issue of abortion, the German Bundestag passed legislation regulating the termination of pregnancy at the end of June 1995. Under the terms of the new law, abortion is prohibited. However, a woman who has an abortion during the first trimester will not be prosecuted as long as she undergoes counseling that must seek to persuade her to carry the pregnancy to term.

Stuart Buck:

The chart linked by Don P. has lots of colors and looks impressive, but I have no reason to think that it is accurate at all.

The chart is based primarily on information from Abortion Policies: A Global Review, by the United Nations Department of Economic and Social Affairs, Population Division. You have no plausible basis to dispute the accuracy of this information. The chart shows abortion to be available on demand in 28 countries (Albania, Australia, Bahrain, Belarus, Belgium, Bosnia, Cambodia, Canada, China, Croatia, Cuba, Denmark, Estonia, Germany, Greece, Hungary, Korea, Laos, Lithuania, Macedonia, Mozambique, The Netherlands, Norway, Singapore, Slovenia, Sweden, the United States, Vietnam and Yugoslavia.). In addition, abortion is available for "social" reasons (which includes economic hardship) and/or "health" reasons (which includes threats to both mental and physical health) throughout most or all of a woman's pregnancy in dozens of other countries (including Armenia, Azerbaijan, Barbados, Belize, Botswana, Cyprus, the Czech Republic, Fiji, Finland, France, Georgia, Ghana, Grenada, Guinea, Iceland, India, Israel, Italy, Japan, Jordan, Kazakhstan, Latvia, Liberia, Moldova, Namibia, Nepal, Nigeria, Pakistan, Peru, Qatar, Russia, South Africa, Spain, Switzerland, Thailand, Ukraine, and the U.K.)

Between them, these lists include most of the industrialized democracies. In addition, as I have explained, in most cases "health" reasons and "social" reasons are interpreted broadly and effectively allow something close to abortion on demand.

Your link to the German embassy website illustrates this quite well, and your selective quote omits additional information that makes it clear that abortion is legal in Germany beyond the first trimester:

"An abortion is fully legal if the pregnancy is the result of rape or if completing the pregnancy would endanger the woman's health. The doctor performing the abortion likewise remains free from prosecution."

Note that there is no first trimester limitation on this provision. Since even healthy pregnancies pose significant risk to a woman's health, and since health "exceptions" are generally interpreted broadly, this provision effectively allows abortion on demand, or something close to it.

Here, by the way, is another table, from the International Planned Parenthood Federation, also based on data from the UN. This table also makes it clear that abortion is available on demand, or is effectively close to being available on demand, in most of the industrialized democracies.

Quote:

"Within the IPPF EN, 26 of the 37 countries have abortion laws that allow the procedure without restrictions. This represents a clear majority opinion -- reflected in legislation -- that women have the right to abortion. ...

"Five countries permit abortion on socio-economic grounds, and consider as discriminatory factors the woman's economic situation, her age, her marital status, and her number of children. These laws are usually interpreted liberally, de facto allowing abortion on the woman's request. In the case of Finland, abortion is not available on request, but only on socio-economic grounds. Nonetheless, the interpretation of this law is that if the woman can indicate that delivery and care of a child will be a significant strain for her, she can have the abortion."

David Walser:

Don P - Your argument that the constitution provides a right to abortion (that the Supreme Court has ruled that there is such a right) does not answer the main objection raised by those who disagree: The Supreme Court should never have found (a/k/a made out of whole cloth) that the constitution protects a right to abortion.

This statement is nonsensical. Of course an argument that the Constitution protects the right to abortion answers the objection that the Supreme Court should not have found that the Constitution protects the right to abortion. Or do you think that the Supreme Court should not uphold constitutional rights? Whether you agree with the argument or not does not alter the fact that that argument is an answer to the objection. And you may believe that the Court “made out of whole cloth” that right, but obviously the Court does not agree with you.

The fact that it is the "natural outgrowth of prior [bad] decisions" does not alter the fact that Roe, itself, is a poorly reasoned and poorly grounded opinion.

The prior decisions were not bad. Roe is neither poorly reasoned nor poorly grounded. Your claims above are not “facts,” they are opinions. The Supreme Court, not to mention hundreds or thousands of law professors, disagree with you.

Certainly, the members of the Court thought so at the time, but it has no real basis in the text of the constitution.

Yes it does. It is based in the 14th Amendment and other provisions of the Constitution.

Of course, you may think the Court was right on both policy and the law. If so, point to and apply the specific language from the constitution that provides for a right to abortion or sodomy -- without appeal to any judicial opinion coming after 1950. It can't be done.

I already cited precedent that pre-dates 1950. Meyer v. Nebraska and Skinner v. Oklahoma, for example. But even if there were no precendent before that date, that would not justify your claim that Roe was bad law. And what is the relevance of 1950, rather than, say, 1960 or 1930 or 1850, anyway? You have just arbitarily picked the year 1950 and asserted that if an opinion does not have precedent before that date, it is bad law. That is a nonsensical argument.

All the learned discussion on Roe only shows how a stampede to quarrel about one small point neatly diverts attention from the larger question.

A small minority of Democrat Senators has hijacked the 'advise and consent' function of the full Senate. The Grand Wizards on the Jucidiary Committee have come up with a 'pioneering', and desperate, tactic which has built on the earlier success of Borking by adding a litmus test: pray, Mr. Estrada, do tell us how you'd rule on certain cases in the future? This demonstrates that said Wizards would happily compromise judicial independence by barring a judge not committed in advance to the Wizard side of the fence. Some bloody Judiciary Committee.

Youse abortion quibblers are ignoring vast tracts of the forest for one lousy tree.

Michelle Dulak:

Don P: I wasn't dismissing the deeper issues regarding Meyer v. Nebraska (which are exactly as you say), just alluding to the weirdness of its being drawn into a "line" of cases most of which have to do with sexual autonomy.

Its relevance is that the right upheld in that case was also the right to privacy, which is the basis of the later decisions on contraception, sterilization, abortion, marriage, the raising of children, and so on.

I can see the moral arguments (if not the Constitutional ones) for letting parents educate children as they like; but I don't see that they have anything to do with "privacy."

Well, read the opinion. It's quite comprehensive. If you don't agree with it, you are free to work to amend the constitution or for the appointment of justices who will overturn these rulings and return to states the power to sterilize people, deny them contraception, deny them abortion, and so on.

I am still trying to understand where the abortion right is. In the 14th Amendment?

Yes. I've said this three times.

Do you mean equal protection, or due process?

Both.

Quick question: when did American women gain the right to abortion? (I mean, "when did they have the right" in your theory, obviously, not "when did it start to be enforced?")

They've always had it.

Or was the right floating out there, unenumerated and unacknowledged, before there even was a US Constitution, let alone a Bill of Rights or a 14th Amendment?

The right was "floating out there." In the American conception of government, rights pre-exist laws. Laws (including constitutional laws) don't create rights, they just secure them. Read the Declaration of Independence.

Don P - In comments responding to Stuart Buck, you state: "The chart is based primarily on information from Abortion Policies: A Global Review, by the United Nations Department of Economic and Social Affairs, Population Division. You have no plausible basis to dispute the accuracy of this information." While Stuart is more than capable of defending himself, allow me to point out that he has more than a plausible basis for doubting the chart's accuracy. Here are just some of the very plausible reasons:

* The chart's information conflicts with the conclusions of a nationally known and recognized expert on the topic.

* The chart may be based on UN data, but that does not mean that the chart faithfully presents that data. The world is full of reports based on valid data that are none-the-less misleading because the author of the report selectively uses the data.

* The UN is a source of reliable data about social issues? Not in my lifetime (so far).

Pardon me if I don't accept the chart's information without some additional verification. Not that I'll reject it out of hand, but it doesn't settle the issue either.

David Walser:

Your response to Ken, above, that "Some other medical procedures may also be constitutional rights. I'm not sure which, if any,..." gives a clue as to why this line of Supreme Court "reasoning" is so poor. Shouldn't we be able to read the constitution and determine, with some accuracy, which medical procedures are covered and which are not?

Yes. We should and we do.

Here's a practical example: My youngest daughter will turn 15 next month. Per Roe, she is old enough to get pregnant and have an abortion with out my consent or knowledge. On the other hand, give her a tattoo or pierce her ears without (her mother's or) my permission and you could end up in jail. On what planet does THAT make logical sense?

I often see this bizarre question. I don't know why you can't see the obvious answer. Denying an abortion to a pregnant 15-year-old girl is likely to have a rather more profound, and adverse, effect on her life than denying her a tattoo. That is why parents are and should be able to legally prevent her from getting a tattoo, but not an abortion.

The constitution protects abortion but not tattoos?

Yes, for minors at least. The Constitution may also protect the right of adults to get a tattoo, at least under certain circumstances. I don't know if it's ever been tested.

You'd think the 1st amendment might be stretched to cover body piercing!

Probably not, but the 14th Amendment might cover it.

Bottom line: Roe and similar policy driven decisions

Roe is a legal decision.

have so distorted the constitution's meaning

No they haven't.

You know, just repeating the claim, over and over again, that Roe is bad law, that it has no basis in the Constitution, that it's "judicial activism," blah, blah, blah, may make you feel good but it is worthless as argument. You won't make your claim true simply by asserting it and repeating that assertion again and again.

David Walser:

The chart's information conflicts with the conclusions of a nationally known and recognized expert on the topic.

I don't think it does conflict, if you read Glendon's statements carefully, and bear in mind that she is a conservative Catholic, an opponent of abortion, and that her selection of data and her paraphrasing and spin of that data reflect her anti-abortion bias.

The chart may be based on UN data, but that does not mean that the chart faithfully presents that data.

You can find the original document here.

I don't think it is quite right to say Jefferson oppossed "Judicial Review." If Jefferson had truly oppossed "Judicial Review" he would not have acquiesced to the decision in Marbury v. Madison.

To see one source suggesting that Estrada may not support the idea of judicial review go to:

http://www.independentjudiciary.com/resources/docs/draft%20report_9_24_02.doc.

Stuart Buck:

Your response to my citation of polls showing that a majority of Americans support Roe v. Wade and that only a minority wish to overturn it was to claim that these polls are misleading because there is widespread misunderstanding of the nature of the ruling.

That may be true, but it is also true of Americans' understanding of abortion in general, which supports my broader point that polling data does not provide a reliable basis on which to conclude that Americans oppose Roe or favor greater restriction of abortion. There may be widespread misunderstanding of Roe, but there is also widespread misunderstanding of the circumstances under which women seek abortions, the relative medical risks of pregnancy/childbirth vs. abortion, the period during which most abortions occur (the vast majority are performed very early in pregnancy), the likely effects of criminalizing abortion, and so on. For example, many people who say they think abortion should be criminalized in cases of consensual sex but permitted in cases of rape might feel differently if they were told that a likely consequence of such a law would be a significant increase in false claims of rape. The law could make many men vulnerable to false accusations of rape by pregnant women seeking an abortion.

And this is one reason why we do not generally make public policy on the basis of simple majoritarianism, and why government-by-ballot-measure is generally considered a bad thing by political scientists. Most people simply do not have a good understanding of the complex nature of important social issues like abortion, and what they say to a pollster does not necessarily represent how they would feel if they were better informed of the facts and arguments. So these appeals by critics of Roe to polling data that they claim suggests that Roe is out-of-step with public opinion are simply not valid. It's not that polls have no value at all; they just have to be taken with a grain of salt, especially on an issue like abortion. Polling data on abortion simply does not support the claim that current abortion law in America departs significantly from the views of most Americans.

Don P - Since you found many of my prior statements nonsensical, let me try to be more clear. I am not arguing about the result in Roe. I will concede that allowing abortions may be the proper public policy. I am arguing that the Supreme Court was not the proper entity to set that policy. So, you say that the 14th Amendment protects the right to abortion (a right that existed, but was not protected until the 14th Amendment was adopted, from the time of Adam). Fine, please tell me exactly how this amendment's text (and a reasonable interpretation of that text) applies to abortion. At the same time, explain how your reading protects abortion but still allows me to prevent my 14 year-old from getting a tattoo or a nose ring. You say that the difference is found in the difference in the magnitude of the decision. That is, having a child has lifetime consequences, while, by comparison, whether to get a tattoo is a very small decision.

That distinction does not support your argument. Are you saying because of the smallness of the decision, a parent's right to instruct his child overcomes that child's constitutional rights to self-expression and privacy? Normally, you need a very large reason to trump a constitutional right! So your formulation is all wrong. We don't let 14 year olds make many decisions of any weight at all. We won't let them decide to drink or smoke, we won't let them drop out of school, we won't let them buy real estate, nor will we let them control their own money. Why? Because, for the most part, they are too young to make important decisions -- except for that one about whether to have a baby or not. As if that one won't have life long implications, one way or the other. No, to consistently apply the "logic" of Roe to the question of tattoos, you'd have to allow a 14 year old to get a tattoo without her father's consent or knowledge. If a child's need to receive advice from a parent when contemplating an abortion (or the parent's interest in giving advice) cannot overcome the hurdle of the right to privacy, how can we expect a much smaller need to overcome the same hurdle? So, you'll need to reformulate your argument as to why the constitution protects access to abortion but not tattoos (at least with respect to children).

Fair warning: I don't think you can do it. Nothing personal. I've read Roe (and many of the prior and following cases) and I find Roe lacking in any kind of specific logical underpinnings. Other than saying that getting a tattoo is different because you say so, I don't see what basis there is for allowing the regulation of the one but not the other. Nor, for that matter, do I see how a judge can consistently apply the teachings of the recent Lawrence (sodomy) decision without permitting polygamy. (There is a Supreme Court decision upholding Congress' ability to prohibit polygamy. But that one's really old, so the courts can safely ignore it.)

Bottom line: I think Roe was a result driven decision and was not based on any kind of logical application of the constitution. Prove me wrong by showing how the constitution can be logically applied to abortion. Saying that Roe is constitutionally grounded over and over does not make your point.

David Walser:

I don't really know how better to explain it to you. It seems obvious to me that the magnitude of the burden an unwanted pregnancy and childbirth imposes on a 15-year-old girl is vastly greater than the burden of being prevented from getting a tattoo, and that her right to be free of the former burden is therefore also vastly greater than her right to be free of the latter one. Thus, I conclude that the rights of her parents to control the behavior of their daughter permit them to prevent her from getting a tattoo but not to prevent her from getting an abortion. It's the same basic principle by which I believe parents should not be permitted to prevent their daughter from obtaining, say, surgery to correct a major and permanent disfigurement, or therapy for a serious medical condition. Parents do not own their children and do not have the right to impose on them burdens that are likely to have profoundly negative consequences for the rest of their lives.

I further believe that these rights are part of the liberty interest right protected by the Constitution. If you believe that the liberty right guaranteed by the Constitution protects only freedom from physical restraint, and no other kinds of liberty, then you are perfectly free to try and persuade others to adopt that view. I don't think you have a snowball's chance in hell of succeeding, but you certainly have the right to try.

If, on the other hand, you believe that constitutional liberty involves more than simply freedom from physical restraint, then you also face the problem of determining just what the scope of that liberty right is, and since the Constitution does not explicitly enumerate all the specific rights protected under the provision, you too must (as you would have it) "make up rights out of whole cloth."

Don P. accuses Prof. Glendon of "anti-abortion bias." Yes, Prof. Glendon is pro-life. Just as Don P. is, I take it, pro-abortion. But Prof. Glendon is also a renowned scholar of comparative constitutional law. Don P.'s qualifications are what, exactly, beyond the fact that he has used Google once or twice?

Yes, the German Embassy website indicates that abortion is legal throughout pregnancy for reasons of rape or endangering health. According to Don P., that effectively amounts to abortion on demand. Whether his statement has any basis in fact, I have no idea. But I do know that if any American state attempted to pass a law like Germany's, the Supreme Court would strike it down. That is Prof. Glendon's point. In terms of what the law is actually allowed to say, the U.S. Supreme Court is more protective of abortion than the courts or constitutions in most Western countries.

Indeed, if you read the UN document (handily linked by Don P.) on the history of Germany's abortion laws, you find that in 1993, Germany's highest court ruled that "permitting lawful abortions to be performed when a pregnant woman was in a situation of distress and conflict violated the right to life explicitly guaranteed by the German Constitution." The court also held that "all abortions except those performed for therapeutic reasons were unlawful," and that "the provisions of the law dealing with mandated counselling were unconstitutional because they were not sufficiently designed to protect life."

Yet Don P. appears to be claiming that Germany is as protective of abortion as is the United States. I find any such claim odd, to say the least.

The IPPF document Don P. cites confirms my point. Anyone who actually reads the entire thing will find it readily apparent that most European countries do restrict abortion to a greater extent than would be allowed in America. The document states, for example, that "The majority of the countries where abortion is available on request have a gestational limit, usually of 12 weeks," and that "in a large number of CEE countries, the law states that abortions should be only performed in a state hospital or licensed clinic." Both types of restrictions would likely be struck down in the U.S.

Don P. says:

Roe is neither poorly reasoned nor poorly grounded. Your claims above are not “facts,” they are opinions. The Supreme Court, not to mention hundreds or thousands of law professors, disagree with you.

Perhaps Don P. could cite 5 or 10 of these "thousands" of law professors who have written scholarly articles arguing that Roe itself was well-reasoned and well-grounded. No need to provide the full texts of their articles, as I have access to LEXIS. Just a list of 5 or 10 law review articles would be nice.

Uh, the "blue slip" process had no basis in law. It was a courtesy. It was non-binding. It's completely false and intellectually disingenuous to compare that process to a filibuster.

How many Clinton nominees were filibustered? None.

Carry on.

Also, will somebody enlighten me as to when, exactly, the political views of nominees have ever been relevant?

Perhaps the idea and practice of judicial activism and bench legislation has become so prevalent from the Left that it can't imagine that the judicial temperment of the other side would be different than its own.

And by demanding that nominees maintain Roe, Senate Democrats (and their interest group puppetmasters, lead by Ralph Neas), care more about adherence to precedence than adherence to the Constitution.

That having been said, unless the Senate changes the rules on filibusters, we'll see how much those Democrats like precedent when their tactics end up being used by the other side.

"I often see this bizarre question. I don't know why you can't see the obvious answer. Denying an abortion to a pregnant 15-year-old girl is likely to have a rather more profound, and adverse, effect on her life than denying her a tattoo."

And getting an abortion is going to have a more profound and adverse affect on her life than getting a tattoo. Either way, the decision is going to have a greater impact than a great many that we routinely deny to unemancipated 15 year olds.

Again, I'm puzzled as to what's so special about abortion here. If we've got a privacy right to get an abortion, why haven't we got a privacy right to smoke marijuana? Why must we allow unemancipated teenagers to decide whether to get an abortion, but not questions of much lesser import such as whether to get a tattoo?

Guys

I, for one, think we've gotten blogged down in Roe.

I have a prediction.

In the '04 election even if the Senate is controlled by the President's party, Democrat or Republican, it will not be controlled by a Supermajority.

If it's the Republicans in control of the Executive Branch & The US Senate, but not by a Supermajority, then it's the same old same old.

But if it's the Democrats in control of the Executive Branch & The US Senate, but not by a Supermajority, then if the Republicans try the phantom filibuster now successfully being used by the Democrats, the Media Establishment will immediately come out & say: stop acting like children, you Republicans; what? Tit for Tat? That's unacceptable to the American Public. Stop it & stop it now. The past is past; let's move on. You lost the election & your guy, who stole the last election, couldn't thwart the will of the people with radical judges & the majority has now retaken control. (Some of you bloggers will find that this argument makes perfect sense!)

There will follow a rash of Establishment Media stories about how some poor wretch is, nay an army of poor wretches are, being denied justice since their case can't be finally adjudicated.

It'll be like the poverty stories complete with homeless folk which stories suddenly arose beginning in 2001, no poverty or homelessness existing when Democrats are in power.

Enough Republicans will break rank so that the Democrats will have 60 votes & there goes the Republicans Tit for Tat.

TomCom

PS A Martian landing in a Flying Saucer might say: So what if Democratic Senators won't approve a nominee unless he/she says Roe, now, Roe tomorrow, Roe forever? You have a majority of Republican Senators. Can someone tell me (I read the blog referred to by our host) why, for some reason, for many reasons, the Republicans will not call the Democrats on their invented Supermajority requirement (via the phantom filibuster) despite the clear meaning of the Constitution that only a majority vote is necessary? And why for some reason, for many reasons, the President is silent?

(BTW, our host has been attacked by a ton of lying-with-statistics blogging, e.g., (1) in recent years, every President's nominees went in until the last year of his administration, whereas, this farce started from day one of Bush 43. And Chuckie Schumer & Teddy K have made it clear that it won't stop at four nominees & (2) in previous administrations, Blue Slips were agreed to by both Republicans & Democrats & have nothing to do with this Supermajority end run.)

Don P - I understand why, from a public policy standpoint, you might conclude that the greater an individual's "desire" for a certain outcome, the harder it is to justify allowing someone to interfere with that outcome. But that's not the way constitutional rights work. I don't have to justify my right to free speech in order for the courts to prevent the government from interfering with that right. Same thing for the right to vote. Most people don't vote in this country. Of those who do, many don't bother to study up on the issues. Despite this lack of interest in voting, the courts take very seriously allegations that someone's right to vote has been infringed. Only a VERY LARGE governmental need can overcome a constitutional right -- the police cannot search my house without a warrant despite the fact such a search would not "harm" me.

In theory, the same should apply to the right of privacy or to control my own body. If there is such a right, it should apply whether its a big deal or not. It should protect me from all governmental intrusions into my privacy or any limitations on my ability to control my body. Clearly, I would not have MORE protection as the governmental interest in abridging such rights increase.

When you say, "since the Constitution does not explicitly enumerate all the specific rights protected under the provision, you too must (as you would have it) 'make up rights out of whole cloth.'" That's exactly what the court in Roe did. I do not trust a system that depends on unelected judges to secure my rights. I want my rights written down for all to see. If a particular liberty is not enumerated in the constitution, we can always add it. If, on the other hand, rights are confirmed by the whim of judges, what's the point of having a written constitution?

The claim that overturning Roe vs. Wade will lead to a Republican meltdown remind me of the claim that the "Arab street" will arise upon an invasion of Iraq.

Apparently, the American street will arise if they're given the ability to vote on abortion.

I don't really know how better to explain it to you. It seems obvious to me that the magnitude of the burden an unwanted pregnancy and childbirth imposes on a 15-year-old girl is vastly greater than the burden of being prevented from getting a tattoo, and that her right to be free of the former burden is therefore also vastly greater than her right to be free of the latter one.

Mmm-hmm, until we consider that some women who abort appear to undergo a special grieving process significant enough to at least have its own name (post-abortive stress syndrome). Judging by the number of post-abortive women who regretted the decision enough to not only refrain from having additional abortions, but become prolife activists, the decision to abort is not a merry alternative to maternity. Glance over the rosters of prolife groups and/or volunteer lists in prolife counseling/support services such as the Crisis Pregnancy Centers -- not only do women outnumber men, the number of postabortive women is significant.

Clearly, the question of "relieving" a 15-year-old girl from the burden of an unplanned pregnancy is slightly more complex than you make it, since that relief may not be anything of the sort.

Furthermore, a mother typically undergoes a prenatal bonding process later in the pregnancy, so what the 15-year-old girl percieves to be a "burden" early on may not be percieved in the same way later. In other words, for the simple lack of age and/or experience, a 15-year-old girl may not possess sufficient maturity/intelligence to reason out this decision and we're right back where we started -- why are we freely entrusting this decision to a minor, again? While denying the right to engage in legally binding contracts and such?

Thus, I conclude that the rights of her parents to control the behavior of their daughter permit them to prevent her from getting a tattoo but not to prevent her from getting an abortion.

Why?

It's the same basic principle by which I believe parents should not be permitted to prevent their daughter from obtaining, say, surgery to correct a major and permanent disfigurement, or therapy for a serious medical condition.

A false analogy based on rhetorical claptrap. The result of not correcting a disfigurement or physical ailment through appropriate surgery or therapy is usually a disfigurement or serious physical ailment (which, depending on the circumstances, may even worsen over time). With certain rare exceptions, the result of not "correcting" an unplanned preganancy via abortion is...a newborn child. If the mother so desires the child may be placed under adoption and remove another family from the waiting list, and for those too poor to afford proper medical care during the pregnancy and birth, there are still options available (including the aforementioned prolife Crisis Pregnancy Centers, limited provisions from prochoice Planned Parenthood, and failing all else, the legal requirement that no person may be denied emergency medical service).

So unless you, without citing AskMen.com, wish to contstruct an argument that considers maternal weight gain and permanent enlargement of the vagina to be serious disfigurements, we are on that premise no closer to determining whether abortion is within the realm of a minor to decide.

Parents do not own their children and do not have the right to impose on them burdens that are likely to have profoundly negative consequences for the rest of their lives.

The question under discussion is too complex to be reduced to such a facile argument. Aborting also potentially has profoundly negative consequences as discussed, and in addition to those is the possibility of serious injury to the mother. One small piece of the fetus left in the womb can result in a severe infection; one small nick in the uterine wall could result in severe illness or death from septicimia. I understand this to be among the notable reasons why minors are not normally entrusted with the right to consent to any other types of non-emergency surgery.

While the parent's legal control over the minor can sometimes be confiscated if clearly necessary surgical procedures are being denied, this is the extreme case. Since most pregnancies do not result from rape or incest and do not endanger the mother's life (the three conditions under which abortion was legal prior to Roe), odds that a parent denying a minor's abortion would fall into an "extreme case" are likely to be extremely low, and could presumably be defined as cases where legal control could be confiscated.

with respect to the original entry, i would like to point out that estrada was not very forthcoming with what he thought re abortion, or much else for that matter. it is true that they might have shot him down after that had been established, but the dem position was always that they couldn't vote on him, because they really didn't know what he believed. estrada and republican strategists had no interest in letting folks know. the question is why?

Will somebody explain to me why 45% of the elected membership of the Senate is allowed to define what is and is not "moderate"?

cas - The claim that Estrada was not forthcoming was a canard. He answered all their questions (in as much detail as permitted by the cannon of judicial ethics), offered to answer additional questions, and requested the opportunity to discuss any concerns a senator might have in person in the senator's office. As demonstrated by the transcripts, Estrada's answers were more complete than many other nominees the Democrat senators have approved in the past.

The ONLY thing Estrada did not do was give the Senate copies of his internal legal memos written while he worked in the Justice Department. He could not do that without the Justice Department's permission, which was never given. Permission was never given, it was claimed, because doing so would make it more difficult for those working in the department to give their candid views. All living former Solicitor's General supported the department's position. One last thing, the Administration, before or after nominating Estrada, never reviewed these memos.

Stuart Buck:

Yes, the German Embassy website indicates that abortion is legal throughout pregnancy for reasons of rape or endangering health.

Right. And "health" includes both physical and mental health. And as I keep telling you, this "exception" is generally interpreted broadly. Virtually any abortion can be justified on health grounds. All a woman needs to do is tell her doctor that the prospect of having to go through pregnancy and childbirth is making her depressed and interfering with her life. This is why, as anti-abortionists correctly point out, the "life and health of the mother" exception in American constitutional law essentially allows for abortion on demand throughout the entire course of pregnancy.

In terms of what the law is actually allowed to say, the U.S. Supreme Court is more protective of abortion than the courts or constitutions in most Western countries.

What matters is not the technical wording of the law, but how the law is interpreted and applied in practise. And in practise, the "exceptions" that allow abortions for reasons of "health," "distress," "economic burden" and so on permit what is effectively abortion on demand. The words themselves are so vague and open-ended that their meaning is essentially a matter for individual doctors and their patients to decide. In fact, in some countries, such as France and Italy, the law explicitly allows the pregnant woman herself to decide whether her situation falls within the statutory exemption. In other words, if the woman herself believes that the pregnancy endangers her health, she can obtain an abortion even during the third trimester.

Stuart Buck:

This is vastly overstated. Most law professors do indeed prefer a constitutional right to abortion, but I cannot think of even a single constitutional law scholar who has written that Roe itself was well-reasoned and grounded in the Constitution.

Then you need to educate yourself. For example, an amicus was brief was filed in Webster v. Reproductive Health Services "on behalf of 885 American law professors" affirming their belief that "the right of a woman to choose whether or not to bear a child, as delineated ... in Roe v. Wade, is an essential component of constitutional liberty and privacy commanding reaffirmation by the [Supreme] Court." Similarly, the American Bar Association has repeatedly passed resolutions affirming the legal correctness of Roe, such as their 1990 resolution stating that "the fundamental rights of privacy and equality guaranteed by the United States Constitution" encompass "the decision to terminate [a] pregnancy."

Now it's certainly possible that nearly 1,000 law professors, as well as the nation's leading organization of lawyers, could be wrong on a matter of law. But what isn't reasonable is this ridiculous claim, that see repeated endlessly by anti-abortionists who don't know what they're talking about, that there is little or no support for Roe as a matter of law amoung the nation's lawyers and legal academics.

boban, read the Constitution. This is the 1st time in 200 years this has been done.

They violated their oath of office to uphold the Constitution.

Vote them up, vote them down, but vote. And if the pubbies were the first to do this, I'd be screaming either way. THEY VIOLATED THEIR OATH OF OFFICE.

Ted (bridge, what bridge) had a very snarky comment today about Bush going to the UN and not being unilateral.

However, they were very unilateral on Estrada, weren't they?

Would you like to wait for 2 years before you knew you had a job?

What judicial review are you talking about?

David Walser:

When you say, "since the Constitution does not explicitly enumerate all the specific rights protected under the provision, you too must (as you would have it) 'make up rights out of whole cloth.'"

So you keep saying. And I'm asking you to explain how to determine what rights, exactly, are protected by the constitutional guarantee of "liberty" without engaging in what you refer to as "making up rights out of whole cloth."

For that matter, what, exactly, is "equal protection" as protected by the constitution? What is "due process?" What, exactly, counts as "cruel and unusual punishment" as referred to in the 8th Amendment? Does it include torture? Starvation? The death penalty for minor crimes? What, exactly, counts as free "speech" as protected by the First Amendment? Does it include pornography? Does it include child pornography? Does it include obscenity? Does it include copyrighted material? What is "establishment" of religion? What is "free exercise" of religion? The Constitution is full of words and phrases whose meaning is, of necessity, vague and ambiguous and that must therefore be interpreted by judges to determine the precise scope of the right protected. You just don't seem to understand this basic fact of constitutional law.

--Because that's what legal scholars do. If Roe is "lousy law," why did almost 1,000 law professors sign an amicus brief in Casey affirming their belief that abortion is a fundamental constitutional right as delineated in Roe?--

Because they're liberal? Because they're aging 60s elitist boomers out of step with about 60% of the country? Which I think, that number has been consistent for a couple of decades.

Too bad we can't ask our Founding Fathers as to the "fundamental constitutional right.

The abortion issue is over, frankly. When the spawn of the Berserkelys don't like it,

--Denying an abortion to a pregnant 15-year-old girl is likely to have a rather more profound, and adverse, effect on her life than denying her a tattoo.--

You don't know that, Don P. How many post-abortion traumatic stress syndrome studies have there been? In fact, any studies, 10-20 years out on women who've had them?

It will bother some and it will not bother others. But the action will always be there in the background. Whether abortion, adoption or raising the child, it will always be there. Some will handle the decision well, the remainder will carry it for the rest of their lives. And since I don't think there have been studies, we really don't know how their lives would be affected, do we?

And are most females having abortions young or in the 30+++ age bracket? Because if they're in the 30+++ and above, depending on the circumstance, the sympathy meter's broken. Especially w/the available contraceptives today and since they've most probably been active for at least 10 years. One would think by then they'd get a clue, but hey, if they actually swallowed the feminist line of wanting control of their bodies, they wouldn't be getting preggers in the first place because they'd be in control. Especially after 10 or more years of practice.

From what little I've followed the issue over the years, this is my take.

America doesn't like it to the really consistent tune of about 60% for a couple of decades or so.
They do, however, see the need for it in case of rape, incest or danger to the mother. They are willing to keep it available during the first trimester, however after that, no. And they're not going to pay for it. There will be states that can live with that, and others not, but we're a big country and people can move to a state which they agree with the policies of. It should be a state's rights issue, let we the people decide.

What some have failed to realize is that we're not in the 70s med tech anymore. Not when a 6- month-old fetus has a chance to live a normal life. It is human it is a baby.

You get points for trying to tug on the heartstrings with the 15 y.o., tho.

And asking a potential judge on how he/she will rule on a case without seeing any facts of the case is ridiculous. Which is what they are expecting. Do you want a judge to rule on a case without looking at the facts of the case?

let we the people decide

But don't let the prospective mother decide; rely instead on the state legislature.

we're a big country and people can move to a state which they agree with the policies of

It's really important to you to be able to live in a state where abortion is illegal, isn't it? That's interesting. I'm not sure why it matters so much to you.

What some have failed to realize is that we're not in the 70s med tech anymore. Not when a 6- month-old fetus has a chance to live a normal life. It is human it is a baby.

How about a 1-month old fetus? Is that human? Is that a baby? How about a 5-day old "fetus"?

Almost 90 percent of abortions in the US are performed in the first trimester.

Don P. - I understand the role of judges. We need judges to interpret the constitution and to apply the law. Our language is too poor for us to be able to write a document in a way that no one can legitimately question its meaning. That's where judges step in to umpire the matter.

Does the constitution's prohibition on cruel and unusual punishment prevent the state from imposing the death penalty? This is a question that is the subject of much legitimate debate. Currently the Court says that the death penalty may be constitutionally applied. If a future Supreme Court disagrees, the justices should be obligated to explain exactly how the death penalty is properly viewed as cruel and/or unusual. Such an explanation may take more than a paragraph or two, but it is very possible to construct a cogent. logical, argument that ties a position (pro or con) on the death penalty back to the text of the constitution.

I don't think it's possible to create a similar argument that ties the reasoning of the Roe court back to the constitution -- surely the court didn't do it in their published decision. No, what the Roe court did was to rule based on what they thought the "moral" answer was. They said, "Hey, the general thrust of the constitution is to protect us from unwarranted intrusions into our liberty. This strikes us as such an intrusion, so it's unconstitutional." It took them a lot more words, but that's the sum total of their constitutional analysis.

On the one hand, it is right and proper for judges to interpret the law. That's a judge's job. On the other hand, judges are not supposed to be ruling based on their own moral imperatives. That's not interpreting the law; it's creating it.

It is frequently hard to tell the difference. I suspect it is often difficult for an individual judge to know his or her own mind. It must be like being a major league umpire. It's not always easy to say whether a given pitch should have been called a strike or not. We know what the strike zone is, but each umpire calls 'em a little differently. If a pitcher throws the ball to first base, it's not a strike. Unless the umpire says it is. In which case, it's a strike -- and the rest of us are justified in believing the guy is making it up as he goes along.

anony-mous:

While the parent's legal control over the minor can sometimes be confiscated if clearly necessary surgical procedures are being denied, this is the extreme case. Since most pregnancies do not result from rape or incest and do not endanger the mother's life (the three conditions under which abortion was legal prior to Roe), odds that a parent denying a minor's abortion would fall into an "extreme case" are likely to be extremely low.

I see. So unless the girl's pregnancy constitutes what you consider to be an "extreme case," you think her parents should have legal control over whether she has an abortion. The obvious implication of this position is that if the girl wishes to complete the pregnancy but the parents wish her to terminate it, then the parents should be able to legally force their daughter to get an abortion against her will. That's your position, is it?

If not, then you obviously do not believe that the parents should have legal control over their daughter in this matter, even if it is not an "extreme case." And if the parents don't have legal control, then they cannot force their daughter to either terminate or complete the pregnancy. The decision properly belongs to the pregnant girl.

David Walser:

You're ignoring the issue. Even if we stipulate that the death penalty is permitted under the 8th Amendment's prohibition on cruel and unusual punishment, that is obviously not the only issue. Is it constitutional to execute a prisoner by starving him to death, or does that constitute "cruel and unusual punishment?" Is it constitutional to impose the death penalty for rape? Assault? Theft? Is it constitutional to punish criminals using torture? There are obviously all sorts of possible ways in which the state might treat prisoners that could be (are sometimes are) challenged under the 8th Amendment. The Constitution simply does not explain what "cruel and unusual" means in any explicit way. Nor does it explain what "liberty" means in any explicit way. Or free "speech." Or "due process." Or "free exercise" of "religion." It doesn't even contain any definition of "religion" at all. This is why judges must interpret these constitutional provisions.

You simply claim that any judicial interpretation you don't like represents "making up rights out of whole cloth," when your own interpretations of "liberty" or "cruel and unusual punishment" or "speech" or any of numerous other constitutional guarantees could be characterized in exactly the same way. I'm still waiting for you to explain exactly how broad you think the constitutional right to "liberty" is, without "making up rights out of whole cloth" that are not explicitly enumerated in the text of the Constitution.

David Walser:

And by the way, why do you keep going on with this "nine unelected judges" crap? Federal judges are supposed to be unelected. The system was deliberately designed that way. The Constitution requires it. Just as the Constitution also requires that federal judicial appointments are lifetime appointments, and that the salary of judges cannot be reduced. The whole point of these provisions is to create an independent judiciary, a judiciary that is protected from the political pressures that influence the other two branches of government. It's all part of the system of checks and balances that are an integral part of American democracy.

If you don't like this system, if you don't believe in American constitutional democracy, if you don't believe in an independent judicial branch, then just say so. But if that's the case what you're attacking is not Roe, it's the basic constitutional foundation of our system of government.

TomCom wrote:

(BTW, our host has been attacked by a ton of lying-with-statistics blogging, e.g., (1) in recent years, every President's nominees went in until the last year of his administration, whereas, this farce started from day one of Bush 43. And Chuckie Schumer & Teddy K have made it clear that it won't stop at four nominees & (2) in previous administrations, Blue Slips were agreed to by both Republicans & Democrats & have nothing to do with this Supermajority end run.)

Good point. Another point that is conveniently ignored by the "oh yeah, well they did it to Clinton so nyagh!" crowd is that one reason why many of Clinton's (who had roughly the same number of federal court appointees as did Reagan) nominees were delayed was because he waited longer than previous presidents to submit them to the Senate for approval (IIRC he took an average of 315 days to select a nominee when previous presidents took something like 200 days). If you wait longer to submit them to a Senate which is only in session for part of the year, you run the risk of a nominee having to go over two different sessions if your submission comes at the end of one session. Somehow, those who want to play the "well you did it to us (after we did it you with Bork and Thomas)" game probably aren't going to be able to argue that Bush waited and submitted Estrada, Owens, Pryor, Pickering, etc. at the last minute.

Don P.:

Bottom line: it is unthinkable that the United States Supreme Court would ever issue a ruling as did Germany's high court in 1993 -- striking down an abortion law because it didn't do enough to protect unborn life.

You say that German women in fact don't have any trouble getting abortions. That may or may not be true. But it's like the difference between a country in which the Supreme Court strikes down any speed limit under 100 miles per hour, and a country in which the high court actually strikes down a law allowing people to drive 100 mph. When it is pointed out that the law is very different in the two countries, it's no answer to claim that in both countries people in fact tend to drive about 70 mph anyway.

In any event, in your prodigious output of postings, you seem to have missed a question of mine: What is your area of expertise? And for that matter, which law school did you attend? Where can I find a list of your scholarly publications, particularly on comparative international law? You charge that Mary Ann Glendon is biased; but you are obviously biased yourself, and it would be nice to know if you have any substantive training and expertise that is even remotely comparable. Otherwise, I'll take Glendon's word on the international question, as would any sensible person.

I previously stated:

This is vastly overstated. Most law professors do indeed prefer a constitutional right to abortion, but I cannot think of even a single constitutional law scholar who has written that Roe itself was well-reasoned and grounded in the Constitution.

Don P.

Then you need to educate yourself. For example, an amicus was brief was filed in Webster v. Reproductive Health Services "on behalf of 885 American law professors" affirming their belief that "the right of a woman to choose whether or not to bear a child, as delineated ... in Roe v. Wade, is an essential component of constitutional liberty and privacy commanding reaffirmation by the [Supreme] Court." Similarly, the American Bar Association has repeatedly passed resolutions affirming the legal correctness of Roe, such as their 1990 resolution stating that "the fundamental rights of privacy and equality guaranteed by the United States Constitution" encompass "the decision to terminate [a] pregnancy."

My point, however, was that no respectable constitutional scholar of whom I am aware has written -- in law review articles -- that the Roe opinion itself was a "well-reasoned" or "well-grounded" opinion. Rather, the general opinion I learned at Harvard Law School, and have seen for myself in the law review literature, is that Roe opinion itself, in John Hart Ely's famous words, "is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be." John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 947 (1973).

Richard Epstein wrote at the time that the Supreme Court's rationale for its abortion decisions was so poor that "what seemed to make sense as a matter of principle to a lot of people and a lot of lawyers is all of a sudden suspect." Richard A. Epstein, Substantive Due Process by Any Other Name: The Abortion Cases, 1973 Sup. Ct. Rev. 159, 179.

Alexander Bickel, one of the most respected constitutional theorists of the 20th century, wrote: "One is left to ask why. The Court never said. It refused the discipline to which its function is properly subject. It simply asserted the result it reached." Alexander M. Bickel, The Morality of Consent 28 (1975).

Archibald Cox wrote: "My criticism of Roe v. Wade is that the Court failed to establish the legitimacy of the decision by not articulating a precept of sufficient abstractness to lift the ruling above the level of a political judgment." Archibald Cox, The Role of the Supreme Court in American Government 113 (1976).

Mark Tushnet, a well-respected leftist scholar, wrote that "[m]ost academic commentators probably believe that, as a matter of sound public policy, access to abortions should be relatively unrestricted. But none has been able to provide conclusive arguments that the Supreme Court correctly found that policy in the Constitution." Tushnet, The Supreme Court on Abortion: A Survey, in ABORTION, MEDICINE, AND THE LAW 165 (J. Butler & D. Walbert eds.) (3rd ed. 1986).

More recently, Susan Estrich (you may have seen her on television, if you haven't read her legal scholarship) wrote: "Roe is widely acknowledged in elite circles to be a terrible opinion, and in some sense, that is certainly true. All the best young constitutional scholars of their time cut their teeth outdoing each other in the creativity and severity of their condemnations." Susan Estrich, Politics and the Limits of Law: A Musing for Dean Sullivan, 90 Calif. L. Rev. 813, 814 (2002).

Other citations and quotes:

"Sadly, the court failed to relate the body of long-emerging precedent it recognized as significant . . . to those articulable, widely shared principles that the precedents reflect. . . . This failure leaves the impression that the abortion decisions rest in part on unexplained precedents, in part on an extremely tenuous relation to provisions of the Bill of Rights, and in part on a raw exercise of judicial fiat." Heymann & Barzelay, The Forest and the Trees: Roe v. Wade and Its Critics, 53 B.U.L. REV. 765, 784 (1973).

"[I]t is difficult to find a case that raises methodological problems as severe as those left in the wake of Roe." Perry, Abortion, the Public Morals, and the Police Power: The Ethical Function of Substantive Due Process, 23 UCLA L. REV. 689, 690 (1976).

"The result in the case . . . was controversial enough. Beyond that, even people who approve of the result have been dissatisfied with the Court's opinion. Others before me have attempted to explain how a better opinion could have been written." Regan, Rewriting Roe v. Wade, 77 MICH. L. REV. 1569, 1569 (1979).

"One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found." Tribe, Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 HARV. L. REV. 1, 7 (1973).

"Unfortunately, the decisions themselves fail to yield a reasonable justification of the constitutional basis for protection of the woman's interest in terminating her pregnancy." Wheeler & Kovar, Roe v. Wade; The Right to Privacy Revisited, 21 U. KAN. L. REV. 527, 527 (1973).

All of these quotes are from liberal or libertarian scholars who are otherwise sympathetic to abortion rights. Yet their criticisms of Roe itself are scathing. It is because the Roe opinion itself was embarrassingly inadequate that law professors have so often felt the need to recast the abortion right in terms of equal protection, liberty, etc.

--let we the people decide

But don't let the prospective mother decide; rely instead on the state legislature.

1. Don't get yourself in the position to become a prospective mother

2. Now we're relying on the USSC instead of the state legislature.

3. There's lot of things we can't do which were determined by state legislatures long before we came on the scene.

Babar, I'm pro-choice for the 1st 3 months. Always have been.

If I didn't make my point clear, I'm sorry. A consistent approx. 60% don't like it but see the need for it, but after the 1st 3 months, most people don't like it. The country as a whole can live w/that. There will be certain states which won't. That's ok, too. We all have to live w/stuff we don't agree with.

When techology gets to the point where a 3 month-old fetus can grow outside the womb, then it will be a baby, too. What will your stance be when that happens?

As to are they human? Well, they're certainly not dog, cat, weasel, fish, are they?

How about a 1-month old fetus? Is that human? Is that a baby? How about a 5-day old "fetus"?

Almost 90 percent of abortions in the US are performed in the first trimester.

And yet after ten weeks is the preferred time frame even if though the pregnancy can be discovered earlier, ironically enough because that permits the abortion provider to verify complete removal by inventory of body parts (wouldn't do to leave even a fragment of the fetus in the uterus, it could result in a severe infection).

Where was this going, again?

"Now, even if they regain the white house and the senate, the Democrats can be sure that they will face a filibuster on the judges they want -- and complaining about it will earn them no sympathy from the voters."

Oh right, and the GOP was doing such an admirable job of cooperating with Clinton's nominations. There's no downside for the Democrats here.

I see. So unless the girl's pregnancy constitutes what you consider to be an "extreme case,"

Since pregnancy itself is not defined as an "extreme case," but has been a normal event in the human female who engages in sexual activity somewhere around the fourteenth day of her menstrual cycle...yes, I think we can safely define limited criterion under which a preganancy is an "extreme case." And these are not "my criteria," but rather the very ones available before Roe, as I noted.

you think her parents should have legal control over whether she has an abortion.

Legal control in granting permission, which is not the same thing as will be demonstrated shortly.

The obvious implication of this position is that if the girl wishes to complete the pregnancy but the parents wish her to terminate it, then the parents should be able to legally force their daughter to get an abortion against her will. That's your position, is it?

Nope. My position is that pregnancy constitutes a normal event that should only be interfered with in extreme cases, specifically, where the harm to the mother is greater than the harm to the fetus. I have personal problems with the rape and incest argument -- some mothers who aborted a rape child have reported post-abortive stress syndrome that far outlasted the trauma of the rape, for one (while comparatively some mothers who delivered a rape child have reported finding healing in the nurturing process) -- but I'm willing to let those pass for the sake of the argument.

Rape and incest are extreme cases where pregnancy is forced upon the mother against her will, and given that they constitute about 1% of all preganancies, I don't think the "extreme" label is malapropos. Sex education in the schools usually begins around fifth grade, or in other words before the typical human female has any possibility of becoming impregnanted, and typically continues throughout the duration of compulsory education (junior high) and throughout the duration of publically-funded education (high school).

Your efforts to insinuate, or even compare, pregnancy to an infliction or disease hold less water than a sieve. To the best of my knowledge few if any human females under the jurisdiction of the US legal system have an excuse for not knowing that consensual sexual activity (since the rape & incest possibility has already been eliminated as exceptional) can lead to pregnancy, even if said females somehow does not get that instruction from their own families. It is a common and normal consequence of the action.

As for life endangerment, this is self-evidently a dillemma, since the life of the fetus may inevitably terminate the life of the mother, and can likewise constitute an "extreme case."

If not, then you obviously do not believe that the parents should have legal control over their daughter in this matter, even if it is not an "extreme case."

Entirely wrong, as described above.

And if the parents don't have legal control, then they cannot force their daughter to either terminate or complete the pregnancy. The decision properly belongs to the pregnant girl.

Then by that logic the decision to, say, purchase real estate rightfully belongs to a girl who has sufficient money to complete the transaction, and said girl should have the legal right to work for and acquire money, and...The legal premise for denying her those adult privileges is that she does not have sufficient cognitive development to properly evaluate and make the associate decisions.

I already explained legitimate criteria for claiming that a minor does not generally have sufficient cognitive capabilities to evaluate the consequences of an abortion, and therefore, she should certainly NOT be able to seek one independent of parental permission.

Whether or not the legal age of accountability is too high and maybe a fifteen-year-old girl really SHOULD have that set adult rights is a seperate argument, but since we're not engaged in that argument just now, I'm still waiting for you to answer my original point. Forced abortions were not that point. Can a parent force their minor child to get a tattoo?

anony-mouse:

You are changing your claim. You said:

While the parent's legal control over the minor can sometimes be confiscated if clearly necessary surgical procedures are being denied, this is the extreme case. Since most pregnancies do not result from rape or incest and do not endanger the mother's life (the three conditions under which abortion was legal prior to Roe), odds that a parent denying a minor's abortion would fall into an "extreme case" are likely to be extremely low.

If you think the parents should have legal control over whether their minor daughter has an abortion (other than in circumstances that you deem to be "extreme cases") it follows that you think parents should be legally able to compel their minor daughter to have an abortion, because that's what it means for them to have "legal control." You can't have it both ways. Either you think the decision should legally belong to the parents or you don't. So which is it?

My position is that pregnancy constitutes a normal event that should only be interfered with in extreme cases, specifically, where the harm to the mother is greater than the harm to the fetus.

That is a different issue. The issue here isn't the morality of abortion, but who should have the right to make the decision in the case of abortion by a minor.

anony-mouse:

And yet after ten weeks is the preferred time frame

No it isn't. The vast majority of abortions are performed prior to ten weeks.

Don P, I think you are ignoring anony-mouse's parting shot. If a minor can't get a tattoo without a parent's permission, does it follow that a parent can force a minor to get a tattoo? I don't see that either case is symmetrical. There's a difference in kind between leaving a healthy minor's body alone and performing operations on it. Forcing elective operations on a minor is a little different from forbidding them.

Don P:

If you think the parents should have legal control over whether their minor daughter has an abortion (other than in circumstances that you deem to be "extreme cases") it follows that you think parents should be legally able to compel their minor daughter to have an abortion, because that's what it means for them to have "legal control." You can't have it both ways.

Moreover, Don P, there is no constitutional right to medical procedures simply because I really, really want them. I can't have chemotherapy that isn't approved by the FDA, even if it might save my life -- which is inarguably more important than saving my waistline/teenage social life/relationship with my parents. The line that you're drawing for abortion as a medical procedure, or as a matter of desire, seems to have been explicitly said not to exist by the court.

Don P, my position didn't change; as I consider your initial response to have ignored one half of what I first said and misconstrued the other half, I was trying to make that position painfully clear. As for your latest reply, I defer to Michell Dulak, Stuart Buck, and Jane Galt, who already said it better.

In the meantime, I'm still waiting for your justification that a minor ought to have full, legally-independent say in the decision to choose an abortion, in light of the fact that the "inconvenience of childbirth" is not the only possibly-negative outcome.

No it isn't. The vast majority of abortions are performed prior to ten weeks.

Then medical technology now permits this possibility without a significant risk of the stated side effects, and my information on that may have been outdated (~8 years old now that I think about it).

Stuart Buck:

My point, however, was that no respectable constitutional scholar of whom I am aware has written -- in law review articles -- that the Roe opinion itself was a "well-reasoned" or "well-grounded" opinion.

No, what you actually said was:

"I cannot think of even a single constitutional law scholar who has written that Roe itself was well-reasoned and grounded in the Constitution."

How you can possibly construe the statement by 885 American law professors that "the right of a woman to choose whether or not to bear a child, as delineated ... in Roe v. Wade, is an essential component of constitutional liberty and privacy commanding reaffirmation by the [Supreme] Court" is not a statement that Roe is "grounded in the Constitution" is beyond me. What, exactly, do you think the words "essential component of constitutional liberty and privacy" mean if not that the right to abortion is "grounded in the Constitution?" Your claims are becoming increasingly ridiculous.

Michelle Dulak:

If a minor can't get a tattoo without a parent's permission, does it follow that a parent can force a minor to get a tattoo?

Yes, it may well mean that.

I don't see that either case is symmetrical. There's a difference in kind between leaving a healthy minor's body alone and performing operations on it. Forcing elective operations on a minor is a little different from forbidding them.

The issue is not whether they are "different" but in whom the authority to make the decision rests. As for "elective operations," parents certainly have the legal power to compel their children to undergo certain invasive surgical procedures, to enter a drug treatment facility, and so on, so the claim that giving parents the power to prohibit abortion does not also give them the power to compel abortion is simply not justified.

As Harvard professor of constitutional law Lawrence Tribe puts it:

"...if a state is permitted by the Supreme Court to treat all its minor women and girls as too immature to [decide whether or not to have an abortion] for themselves, physicians and courts might well accede to the decision of a parent who believes an abortion is in his or her daughter's best interests."

Jane Galt:

Moreover, Don P, there is no constitutional right to medical procedures simply because I really, really want them.

No one has said there is. The constitutional right to abortion derives from the nature of the condition of being pregnant, and more specifically from the extraordinary burden that that condition imposes on a woman's liberty and equality. During the 9-month term of pregnancy, a woman's uterus increases in size by a factor of 500 to 1000. Her body weight typically increases by 25 pounds or more. Even healthy pregnancies are typically accompanied by frequent bouts of excessive urination, water retention, nausea, vomiting, back pain, labored breathing and fatigue. Every pregnancy carries substantial medical risk. According to the AMA, up to 30% of pregnant women have major medical complications, and 60% have some kind of medical complication. Labor and vaginal delivery impose unique and painful physical demands on a woman that can last for many hours or even days. Under current medical practise, 1 in 4 deliveries are performed by c-section, an invasive surgical procedure involving abdominal incision and, often, general anesthesia. A woman is about ten times more likely to die from completing a pregnancy than from terminating it. Pregnancy may also significantly increase the risks to a woman's health from existing medical problems, such as hypertension, diabetes, or heart disease. Traditionally, pregnancy has been the leading cause of death amoung women of child-bearing age. Pregnancy and childbirth are also commonly associated with serious mental conditions including pre- and post-partum depression. A pregnancy may also cause a woman to lose her job or may seriously harm her career. It may cause her husband or boyfriend to physically abuse her, or to abandon her. It may prevent her from being able to care for other members of her family, such as her children or an elderly parent. It may endanger and disrupt her life in many different ways.

An unwanted pregnancy is a huge burden. Those who dismiss that burden as a mere "inconvenience," like anony-mouse, are either monumentally ignorant of the true nature of the burden, or are simply being dishonest.

"I cannot think of even a single constitutional law scholar who has written that Roe itself was well-reasoned and grounded in the Constitution."

Don P: How you can possibly construe the statement by 885 American law professors that "the right of a woman to choose whether or not to bear a child, as delineated ... in Roe v. Wade, is an essential component of constitutional liberty and privacy commanding reaffirmation by the [Supreme] Court" is not a statement that Roe is "grounded in the Constitution" is beyond me. What, exactly, do you think the words "essential component of constitutional liberty and privacy" mean if not that the right to abortion is "grounded in the Constitution?" Your claims are becoming increasingly ridiculous.

If you care to dispute that, provide citations and quotes.

And Don P., please do reveal -- no need for reticence here -- where you went to law school, where you have published scholarly articles, and anything else relevant to your training and expertise in the area of comparative constitutional law. You and anyone else can look up my bio from my blog, and Prof. Glendon's resume is readily available. It's only fair that you reveal your qualifications as well.

anony-mouse:

Rape and incest are extreme cases where pregnancy is forced upon the mother against her will, and given that they constitute about 1% of all preganancies, I don't think the "extreme" label is malapropos.

And how do you propose to reliably distinguish these cases? If you permit parents to force their daughter to endure 9 months of unwanted pregnancy, followed by an unwanted childbirth, in cases in which the pregnancy resulted from consensual sex but not in cases in which the pregnancy resulted from rape or incest, then you have created a strong incentive for all such minors to falsely claim that they were raped or falsely claim that their father or another male relative had sex with them. Do you really think that's a good idea?

Stuart Buck:

I'm not interested in straining over semantics here. Suffice it to say that my original statement was -- and remains -- entirely accurate. I am not aware of any constitutional law scholar who has written that the Roe decision itself was [BOTH] well-reasoned and grounded in the Constitution. Focus your mind on that "well-reasoned" term, because that's where the action is. Lots of law professors have a political preference that abortion should be protected.

The citation I provided is not a matter of a "political preference," it's a statement in support of the correctness of Roe as a matter of constitutional law. I don't know how much clearer it could be made than the statement that abortion, "as delineated ... in Roe v. Wade, is an essential component of constitutional liberty and privacy". That's not a "political preference," it's the LEGAL OPINION of the EIGHT HUNDRED AND EIGHTY FIVE (885) American law professors who signed the brief. You have offered no serious rebuttal to it, which isn't surprising because there is none. The best you can do is come up with a handful of misleading quotes from a few prominent legal scholars that express a different opinion.

Don P: There is (I repeat) a difference between parents compelling an elective operation on a healthy minor child, and parents forbidding an elective operation on a healthy minor child. The former operation, by definition, isn't medically necessary. The latter denial isn't medically necessary either. But the former involves subjecting a healthy child to invasive procedures against his/her will, and the latter doesn't. I don't see how you can deny the difference.

Michelle Dulak:

Don P: There is (I repeat) a difference between parents compelling an elective operation on a healthy minor child, and parents forbidding an elective operation on a healthy minor child. The former operation, by definition, isn't medically necessary. The latter denial isn't medically necessary either. But the former involves subjecting a healthy child to invasive procedures against his/her will, and the latter doesn't. I don't see how you can deny the difference.

So what if it isn't "medically necessary?" An abortion may not be "medically necessary" in cases in which a father rapes his daughter and causes her to become pregnant, either. Do you therefore believe that in such cases the father (or the girl's mother) should be allowed to force their daughter to endure the pregnancy and deliver the baby against her will?

Don P., let's go back and cover it slowly. What I said was, "I am not aware of any constitutional law scholar who has written that the Roe decision itself was well-reasoned and grounded in the Constitution." Note that I used the word "and." That means that in order to refute me, you have to produce a con law scholar who has written that the Roe decision itself was both well-reasoned and grounded in the Constitution. Also note that I said "the Roe decision itself," not "the abortion right." Lots of scholars think that the abortion right is somehow "grounded" in the Constitution, but simultaneously think that Roe was an embarrassingly amateur and sloppy decision -- as shown by the many quotes I provided above.

So, where is your list of law review articles arguing that the Roe opinion was well-reasoned?

Your repeated citation of an amicus brief is unsatisfactory. What it really shows is that a bunch of law professors, many of whom don't even teach constitutional law, said, "Sure, put my name in," when a letter went around asking, "Wanna sign a brief supporting abortion?" (If you think that 885 law professors actually collaborated on the wording of a brief, you've obviously never met any law professors.) The brief certainly does not show that 885 professors -- or even one professor -- has written a scholarly article demonstrating that the Roe opinion itself was well-reasoned.

I'm not sure why it is so important to you to disagree with me on this. I have agreed that most law professors support abortion as a constitutional right on some theory or another. All I'm saying is that no law professors think Roe itself was well-reasoned -- which is so obvious as to be non-controversial amongst people who know what they are talking about. To quote Susan Estrich again, "Roe is widely acknowledged in elite circles to be a terrible opinion, and in some sense, that is certainly true. All the best young constitutional scholars of their time cut their teeth outdoing each other in the creativity and severity of their condemnations."

And don't forget, Don P., to provide a list of your qualifications, scholarly publications, etc.

Dear Stuart (Buck)

I agree with your posts. Including the fact that Prof. Glendon is most qualified & au courant. I try to read everything she writes. Interestingly, she is not on the A list of TV Talkingheads, tho she holds a Chair at Harvard Law School. Harvard. A Chair. Go figure. Now, if she thought that Roe was the greatest piece of jurisprudence since....

But let me disagree with you when you say that one should have to produce his/her bona fides for a blog. It needn't be that formal & knowledge will out.

Thus, someone who thinks that some junk science is good science should be allowed to say so in a blog; there's enough of that nonsense on TV every night & in the newspapers every day. In a blog like this one, someone knowledgeable like yourself will present some well reasoned, factual rebuttal to some mindless rant heavy on emotion & short on facts.

Also, some credentialed blogger may actually be in a realm outside his area of expertise. This was fairly obvious in Election 2000 where so many of the Credentialed Constitutionalists didn't know anything about the Florida Election Law provisions or for that matter about the Electoral Count Act.

With Don P, several things seem obvious to me.

(1) He's not gonna answer your cries for his resume.

(2) He uses Caps frequently.

(3) He doesn't get your point about the Profs' statement. He thinks that they are saying that the holdings of Roe & its progeny simply recapitulate the Constitution, whereas, of course, they are pure judge-made law.

I suspect that this is because he's unable to understand how lawyers argue, by which I mean that they choose their words carefully in presenting their case or their argument, even if the listener, not having their training, will be misled by it. That's why laymen hate lawyers. That's why the Securities Law forbids not only untruths in prospectuses, but also statements which tho true which are in context false or misleading. That's why Law Profs. ought to be ashamed of themselves for signing mindless petitions which mindless lay readers will (a) accept as true statements of the Law & (b) not place in context.

But I've seen this since Viet Nam when my brethren who knew nothing about The Law of War or the fact that we'd had some wars in the then 170+ yrs of the Constitution, signed endless "End The Illegal War" petitions as lawyers, without noting their limitations. (Please no responses on that War.)

Stuart

When I said in the second paragraph following (3)

"I suspect that this is because he's unable to understand how lawyers argue...."

I meant to add the words "as advocates"

But let me disagree with you when you say that one should have to produce his/her bona fides for a blog. It needn't be that formal & knowledge will out.

Given that Mr. P. has questioned the qualifications, education, and bias of people who obviously know far more than he does about the law, I'm trying to put him on the spot, to be quite frank.

"Moreover, Don P, there is no constitutional right to medical procedures simply because I really, really want them. I can't have chemotherapy that isn't approved by the FDA, even if it might save my life -- which is inarguably more important than saving my waistline/teenage social life/relationship with my parents."

And yet, rather than correct this massive injustice, people are pouring their energies into making sure that the court recognizes our unfettered constitutional right to abortion? What the hell is up with that?

Why do we have a constitutional right to an abortion, if we can't even get unapproved cancer treatments if our very lives depend on it?

"No one has said there is [a constitutional right to any medical treatment other than abortion]. The constitutional right to abortion derives from the nature of the condition of being pregnant, and more specifically from the extraordinary burden that that condition imposes on a woman's liberty and equality."

Wouldn't cancer be an even more extraordinary burden that pregnancy? Wouldn't that lead to an even more compelling constitutional right to treatments for such without waiting for FDA permission?

Stuart

I understand that you are answering Don P's ad hominem attacks on Prof. G & his rants at you, but I think that, with all due respect, you're making his (Don's that is) credentials the issue.

Let me add the following:

If you've pointed this out, I apologize, but rather than questioning the qualifications of Don P, who's just the messenger here, you ought to be asking Don for the qualifications "of the EIGHT HUNDRED AND EIGHTY FIVE (885) American law professors" who gave their "LEGAL OPINION"(Caps, his).

It's my understanding that there are about 250 law schools in the U.S. Assume that there are, on average, two Con Law Profs per school, this amounts to about 500 U. S. Con Law Profs. Since not all Profs would agree with the gist of the statement & not all Profs who would agree would sign such a statement ("a gesture of solidarity masquerading as a statement of professional expertise" in Prof. Posner's delightful description of the Profs' Election 2000 advertisement), this leaves us with a majority of the 885 signatories not being Con Law Scholars, however great might be their credentials in their field.

Also, I think that most people are bored with unscholarly pronunciamentos from academe which consist of nothing more than truisms & bromides reflecting their obvious partisanship (deep hatred). I think that the public is aware of the extreme leftist makeup of the faculties, including law school faculties.

Folks, having, a dialogue regarding the meaning of the Constitution (or just about anything else) with Don P. is a waste of time. Over at Yglesias' site, the remarkable Mr. P. once spent several hundred words maintaining the position that the phrase "high crimes and misdemeanors" pertained only to actual violations of the criminal code, and after people who ostensibly agree with him politically (how embarrassing it must be for them) pointed out the error inherent in such a position, Mr. P. still couldn't exhibit enough grace to withdraw from such a position of ignorance. Having a conversation with Mr. P is not dissimilar from having one with a mule, except that the latter is incapable of dishonesty.

Don P.:

An unwanted pregnancy is a huge burden. Those who dismiss that burden as a mere "inconvenience," like anony-mouse, are either monumentally ignorant of the true nature of the burden, or are simply being dishonest.

Who dismissed anything, besides you and my request for a more defensible justification? Any pregnancy is a burden, but your argument still rests on convenience. Look up the word. I already established that the mother who cannot afford a pregnancy's medical costs does not ncessarily have to bear them, and that through adoption she is not obligated to keep and raise the child, either. We really needn't rehash this old turf every third post. Floss the grass out of your teeth and let us continue:

What I said -- and this time, avoid creating a THIRD strawman by listening carefully to what I am saying -- was that a preganancy is a normal, foreseeable consequence of a particular set of actions. A female who engages in sexual intercourse during her fertile years runs a risk of pregnancy; this is not rocket science, rather basic crotch science, backed by a huge wealth of experimental evidence spanning recorded history.

And how do you propose to reliably distinguish these cases? If you permit parents to force [sic] their daughter to endure [sic] 9 months of unwanted pregnancy, followed by an unwanted childbirth, in cases in which the pregnancy resulted from consensual sex but not in cases in which the pregnancy resulted from rape or incest, then you have created a strong incentive for all such minors to falsely claim that they were raped

Plausible, yes, but what prevents that now if a girl wants to escape of accountability for a sexual act? The Kobe Bryant indictment hinged around whether an admitted sexual act was consensual or forced. Since we can't eliminate this possibility for abuse either way, I don't see how the question of granting a minor unrestricted access to a surgical procedure is meaningfully addressed by this argument.

or falsely claim that their father or another male relative had sex with them. Do you really think that's a good idea?

After we get past the remarkable possibility that a minor child would really want to destroy her family that way (in other words, occasionally but not often enough to become problematic)...DNA testing? You've heard of it?

Let's restate the problem and positions very clearly, just in case you're still interested in intelligently answering the question. Correct me if I'm misrepresenting your basic premise.

1) Anony-mouse, while having more general objections to abortion, believes that so long as it is legal, it should be treated as any other elective surgical procedure with respect to minors -- i.e., permission at the discretion of the parent until extenuating circumstances are encountered, such as forced pregnancy (rape/incest) or life endangerment, in which case a parent denying access to a seeking minor could have guardian rights over-ruled by the court and possibly confisated entirely, depending on the case. Why? Because abortion is a surgical procedure with possible negative consequences and should require legal informed consent except when it is an essential procedure. Furthermore, if an abortion is botched, it will have the same kind of potential negative consequences as any other surgery (ranging from a light infection to death), and cause psychological trauma even when successful, and in any case the associated follow-up costs will be born by the legal guardian.

2) Don P. believes that because an unwanted pregnancy and birth is a burden to a typical 15-year-old girl, she should have unrestricted access to abortion services and not require parental consent, even though the other usual suspects (such as a tattoo) are legitimately within parental consent domain. Why...?

And a thousand words later, we're right back where we started.

My position is dmonstrably consistent with how minors are treated under the law in other areas. A demand for a legal deviation for pregnant 15-year-old girls, backed only by a mere convenience argument, is hardly more than special pleading. I have time on my hands, so Will Allen's notations notwithstanding, I am still waiting for a better justification.

Dear Will (Allen) & Anony-mouse

Interesting comment, Will, on Don P. That's why I addressed my comments to Stuart, rather than to Don P. And I see that anony mouse wants to keep arguing even tho she realizes it's 1,000 words later &....

But, let's just talk in general about your point on the kind of commentator who is impervious to argument.

If I may lecture, I'd say that

- if he/she gives an opinion & I reply, so be it, his/hers & mine are out there, even if I might've argued more eloquently & articulately; but

- if he/she cites "authority", then, it seems to me, I gotta do one or all of the following:

question the authority's credentials
refute the authority's position
indicate that the authority's position is not the whole truth,
indicate that the authority does not stand for the position that he/she (the person quoting it)says it does, or
distinguish the authority's position from my situation.

Then, if he/she does not see my point, I give it up or it's last man standing.

Says easy, does hard, but I gotta address the authority or I lose automatically.

Story: During the Elect 2000 farce, I had din din with some friends &, naturally, the Elect topic came up. One, a lifelong Democrat still lost in the tenements of Astoria despite her hubby's having caught the brass ring, said that Bush was stealing the election.

After some back & forth she played her trump card (she's not a lawyer): the Con Law Profs' ad re Gore having won a constitutional majority.

I indicated to her (in a some what less eloquent statement than the Posner one I quoted above) that the ad was pure propaganda by a bunch of prejudiced Dems who happened to be Law Profs who apparently didn't know that the Constit awarded the prize to the winner of the most states even if he might not have gotten the most votes. And furthermore, that the petition had gone out overnight when none of the drafters had had time to consider the mundane FL election law process.

So, she plays her Super Trump card, so to speak: tell that to the 835 Law Profs (or whatever number of Profs who'd disgraced themselves). I replied "835 X Nothing = Nothing!" (Brilliant? No.)Then we went on to the NYGiants or something else.

But, that's the reason why I don't question the credentials of anyone who makes a statement (my uncredentialed rich buddy's wife). I learned long ago that, first you lose friends and/or second he/she simply cites some authority with more credentials than you. (Who am I against so many?)

So that's why I said to Stuart: attack the authority, as (in Posner's words) "a gesture of solidarity masquerading as a statement of professional expertise".

And I would say to anony-mouse: you've won already.

Uh, 'she?' But I thought that if you have -- I mean, that is to say -- oh dear, I'm going to be in therapy for a very long time trying to sort this one out.

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