Asymmetrical Information

Because, you know, the single biggest threat to the health of the Republic is the possibility that, somewhere, a doctor might perform an abortion on a woman whose life is threatened when there is no time to notify her husband, and some nutjob prosecutor will decide to actually press charges.

that sums it up

Prediction. If immigration stops then abortion will be outlawed. Democrats will lead the charge.

Population size and makeup is what abortion rights are all about. Won't hear that on CNN.

Megan, I see through you. You've made some sort of bet with someone regarding how many comments you can receive to a single post. Are you trying to increase the number of hits to the site? Did you see that 128 people commented on the Whole Foods post with minutiae about wind power, subsidies, etc. and decide to go for a new personal best?

In any case, I agree. Abortion has hijacked politics and the political process for far too long and done more damage to the Democratic Party than they seem capable of realizing, let alone admitting.

MB

Argument about the merits of overturning Roe aside, in what alternate dimension does its reversal lead to all of us shutting the hell up about abortion for a while? Are you joking? I hope do, because if not, then I respectfully suggest that on this point you are out of your ever-loving mind.

Man, it'd be hard to find that jury, but it'd be worth that meal!

Americans can get very worked up about the individual rights thing. And, I mean it's understandable. In a sense an extention of the slavery issue. Even if overturned the volume will not decrease.

I'm very, very economically conservative ... and I considered voting for Nader because he more-or-less said he didn't give a damn about abortion.

Overturning of Roe won't stop talk about abortion. But it would probably make talk about abortion more interesting. To pass legislation in each state, both sides would have to reach out to the people in the middle who don't see the issue in the abolutist terms that dominate the pro-choice/pro-life debate today.

One of Megan's previous posts outlined a position which is probably consistent with that of a third of the electorate: that abortion is a non-trivial act which, while it does not involve "murder", does have moral dimensions far deeper than, say, a lung transplant. Another third of the electorate more or less believes that nothing human--no "person"--is involved and that abortion is fundamentally a medical procedure.

However that leaves the millions upon millions of people who believe that abortion is in fact murder--or at least a form of murder (if such a concept is intelligible at all). Megan was right to point out that these people do not really act as though they believe this.

Nonetheless, to expect that "we can all just shut-up" about this issue is the height of callous arrogance. Abortion IS the central issue of our time for millions of people. Just because you are tired of hearing about it does not mean that others should silence themselves. Flip the channel. Cook a meal. Whatever. This debate will rage on, just as it should.

So, no response to the performance of the Republican senators? No one was stopping them from bringing up any number of issues you suggested should be discussed, and at least one of them (Tom Coburn) was happy as a pig in sh!t to ask Alito about abortion.

Now, it might be unreasonable for one to expect the President's party to challenge a Presidential nominee or try to make him look bad. It might even be too much to ask that they do more than coo at how brilliant he is before sending him on his way to a lifetime appointment.

Yet we have the model of how the Republicans treated Democratic nominees to the bench under Bill Clinton, and they not only didn't ask important questions, they often decided not to ask them anything. Instead, they kept their nominations in the deep freeze for years or simply voted "no." Sometimes they brought up the burning federal constitutional issue of whether the judges loved criminals and hated victims.

The judicial nomination system is broken, sure. Yet if Roe disappeared tomorrow, somehow I don't think something new won't just take its place. Republicans would happily do the same thing to gay marriage, flag burning, or anything else they feel would play to their base if they found themselves as a minority in a minority government. The Democrats are not exactly alone in setting the agenda here.

I agree with Megan that overturning Roe would likely cause debates over abortion to decline dramatically (if not cease entirely) and that that alone is reason enough to overturn it.

Because so many people feel so passionately about abortion, it is easy to assume that overturning Roe will not, in fact, cause people to debate abortion less. But if Roe were in fact overturned, each state would get to make its own abortion laws. And most states are far more homogenous as regards abortion than is the nation as a whole. In states like Massachusetts and Oregon, most people tend to see abortion as a right, so very liberal abortion laws would remain the norm. In states like South Dakota and Louisiana, most people tend to see abortion as murder, so there would be something close to a ban. I suppose that Catholics would still picket clinics in Oregon, and Planned Parenthood would still have chapters in the Dakotas, but in each case those groups would be seen as harmless fringe voters and not as enemies who could change one's preferred form of the abortion law.

Yes, by all means, please do outlaw Roe v. Wade. Just thinking about all the money I can make on the black market transporting minor females out of Texas to Mexico for back alley fishhook operations without their parents' knowledge has me giddy with excitement. No--Mexico, hell! I'll do the abortions myself! Gets rid of the middleman, and think of the savings on transporation costs!

It's an entrepreneurial venture that can't miss. ;-)

great post.

Am I the only one who remembers what the abortion debate was like before Roe v. Wade? Roe actually had the effect of lowering the decibel level of the debate and brought a sort of "unity" to a divisive issue that was tearing the country apart. (The "diviseness" level of today is still not as high as it was then.) But while I personally believe that Roe was a good decision in terms of its effect, after my con law class I realized that there is absolutely no support in the constitution for it.

I got to go with Jane on this one.

An overturn of Roe would result in a landslide of Roe dialog in the short run. However, once that temptest, with all the dire predictions of back alley bloodfests has died down, Roe could finally go over the rainbow and live with Dorothy and Toto. And only then can we possibly hope to get evasive answers from Supreme Court nominees on other subjects.

If Roe should be overturned, and I'm not convinced that SCOTUS will do that even with Alito, then I suspect that the pro-life extremists will be in for a rude awakening. Will there be states that outlaw abortion? Yes, but no more than seven at the most and more likely only two or three. The other states will allow abortions with various degrees of restrictions.

Hey, I am pro-life, but I am also a realist. Most people in the US are against an outright ban on abortion but do believe there should be, or at least are willing to allow for, some restrictions. Extremists on both sides insist on no compromise. When/if the issue goes to the states to be decided, either through the state house or through the ballot, the pro-life extremists will insist on an outright ban and they will lose. The pro-choice extremists will insist on absolutely no restrictions and they will lose.

Once your state has settled on a law, everyone around you will lose interest about the other states, as will you.

Unless, of course, you are one of the above described extremists, at which point you will likely go to your death bed holding a snow globe and mumbling something that sounds a lot like:

"ROE bud"

"But while I personally believe that Roe was a good decision in terms of its effect, after my con law class I realized that there is absolutely no support in the constitution for it."

Which is why Roe should be overturned. Not because doing so will increase or decrease debate on the topic or because it will have any other affect. Roe should be overturned because it is and always was a decision that cannot be supported in the constitution. You don't honor or protect the constitution by ignoring it when rendering decisions. The current Supreme Court should exorcise this particular demon an restore public policy decisions -- like who can marry whom -- to their proper domain: the legislature.

David,

I can't say I disagree with you, but people such as Reagan Fan are going to be very surprised. He said, "Once your state has settled on a law, everyone around you will lose interest about the other states, as will you." What he fails to appreciate is that state laws are not "settled", because what the legislature giveth, the legislature can take away. Before Roe, we had 50 fights in 50 states from the folks on both sides of the issue, even though each state had passed a law one way or another. After Roe, the battleground has shifted to the judicial nomination process, because after Roe, that's the only place that real change can be made.

So yes, Reagan Fan, overturn Roe, but don't think for a minute that the debate will lessen or be forgotten.

"Correct me if I'm wrong, but constitutional law is supposed to be about the big picture, not about whether 48 hours v. 24 hours waiting period constitutes and undue burden."

Yes, you are wrong. The SCOTUS isn't supposed weigh in on what counts as a "speedy" trial? What constitutes a jury of "peers"? It shouldn't decide what kinds of searches and seizures are "unreasonable"? What kind of cause is "probable"? When the requirement of a public trial can be waived? What kind of bail is "excessive"?

It seems like all of the most important questions of Constitution law are precisely the kind of quibbling you seem to be saying is outside of the SCOTUS' purview. They don't just go "Meh, big picture...it was a kinda-speedy and kinda-public trial, so we'll let it slide."

I think Rex overstates the extent to which abortion battles would continue in each state if Roe were overturned. He is right to note that there were abortion battles in the years leading up to Roe, as what had been a firm social consensus against legal abortion almost everywhere collapsed in certain areas, usually in states in the northeast and far west. There is likely to be a post-Roe battle in any state that lacks a clear consensus on whether abortion should be legalized.

But those battles will, I suspect, be somewhat few and far between. The eastern and western states that were battling over abortion pre-Roe have by and large reached a consensus in favor of a broad abortion license. Most other states have a consensus in favor of a limited abortion license. A few states would still ban the practice outright.

In short, the tumult of the sixties is over: most people are familiar with both sides of the question, know where they and their neighbors stand, and will live with the results of putting the issue to a legislative vote.

While you're certainly right that abortion is an outsized portion of SC confirmation hearings, it's hardly the only thing Dems asked about. Look at Feingold, for starters.

I totally disagree that overturning Roe would ultimately make the issue fade away. Arguably, it would make it much worse. While its true that it would disappear in things like supreme court confirmation hearings, how many of these do we really have anyway. There's nothing to stop a pro life majority in Congress from trying to ban abortion with federal legislation or, short of that, adding sever restrictions. Whether this would work or not is questionable, but we would still have the debate. Also, we would have 50 or so abortion debates. Remember, most the protests are state issues anyway. There really aren't many federally peformed abortions. And its almost certain that at least some state somewhere would either outright ban abortion or enact dramatic restrictiosn which would have the practical effect of banning it. You expect to believe that this would lower the decibel level?

Amendment IX: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparge others retained by the people."
Is "the right to control one's body" one of these other rights? If no, then it is not a constitutionally protected right. If yes, then it is. If yes, who has the power to limit it, if anyone?

Amendment X: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are preserved to the States respectively, or to the people."

Either a State has the power to limit the "right to control one's body" or the individual has.
SCOTUS has ruled, in Roe v. Wade, that the individual has (a fine libertarian decision).

I suppose a different SCOTUS could rule that, oops, a State does have the power in which case
we may well have 50 different laws and 50 different outcomes. In which case, some people will have to travel from one state to another to
obtain an abortion.

"Is "the right to control one's body" one of these other rights? If no, then it is not a constitutionally protected right. If yes, then it is."

Interesting, but mostly irrelevant to the abortion debate. I can tell by the way you ask the question that you won't agree, but abortion was never about *a* constitutional right. It is about conflicting rights.

Megan,

stay with me on this, because I swear it's leading somewhere.

I wrote a cease and desist letter to a guy who was using a domain name that infringed on a client's trademark. The guy responded that he would give the domain name to me for a large sum of money. I explained we didn't pay for domain names and that we still wanted the one he registered. I cited to some case law as to why he should transfer the domain name to me. He responded by offering to sell for a smaller sum of money. I responded by quoting him settled case law indicating he had no right to the domain name and that he needed to transfer it to me or I would have to take legal action. He response was that I was a terrible person because I was not being "cooperative."

The first half of your post is very similar to my advisary's argument. Why can't the dems just shut up about it because that would make it go away. Why can't they be more cooperative?

The problem is basically do you beleive the constitution gives a right to privacy? The Abortion debate is the one on which all other privacy debates are based on. Is privacy implied? I say yes. So did the court. Therefore, knocking down Roe, while it would not affect me personally, could lead the way for the government to actually be able to make decisions about my body and my personal life. Can I use birth control? Can I surf the internet for porn? Can I talk about dirty books with my friends? Can I go to S&M clubs? It's none of anyone's damn business. But the government might think it's theirs.

One of the things that bothers me about you're characterization of the abortion debate is that you can't fathum why any pro-abortion person might be as passionate as any anti-abortion person. I am passionate about the government staying out of my decisions. I can think of nothing I feel more passionately about. So why can't I just shut up and cooperate? I think it's pretty obvious that I absolutely can not.

"The problem is basically do you beleive the constitution gives a right to privacy? The Abortion debate is the one on which all other privacy debates are based on. Is privacy implied? I say yes. So did the court. Therefore, knocking down Roe, while it would not affect me personally, could lead the way for the government to actually be able to make decisions about my body and my personal life."

Interesting, but mostly irrelevant to the abortion debate. I can tell by the way you ask the question that you won't agree, but abortion was never about *a* constitutional right. It is about conflicting rights.

I mean, really, why is this so hard to understand? Just think of the youngest child asking, "Why is this 'right' different from all other 'rights?'"

Kate: "The Abortion debate is the one on which all other privacy debates are based on. Is privacy implied? I say yes."

This is bad legal history and bad logic. The implicit right of privacy goes back to the contraception decision (which Alito specifically said is "settled law"). The right to abort stands on the right of privacy, not the other way 'round. The right of privacy is 'the right to be let alone, as long as you're not bothering anyone else.' The essence of the abortion debate is whether, or when, a fetus counts as 'anyone else'.

Compare and contrast:
"If you think abortion is bad, don't do it."
"If you think child abuse is bad, don't do it."

Kate - I hear your desire for the Constitution to embody a right to privacy that would prevent government from having any say in the question of abortion. However, unlike most slippery slope arguments where nothing ever slides down the slope, the Court's discovery of an unarticulated right to privacy in the Constitution has led successively from one surprising decision to another even more surprising. (I'm using the term "surprising" because I could not come up with a more neutral term -- neither pejorative nor laudatory.) First there was the right to use birth control, then the right to abort, then the right to engage in sodomy (less than a decade after the Court had found no such right), next will come the right to same sex marriage and polygamy. I say surprising because it's hard to argue that, pre-decision, anyone could point to anything in the text of the Constitution that articulated the right divined by the Court. (Indeed, post-decision, it's hard for anyone to point to anything in the text supporting the Court's holding.)

It's clear that the Court's decisions fundamentally altered the meaning of the Constitution -- with many unforeseen consequences. Whether you agree with these outcomes or not, this is just NOT the way the Constitution's meaning is to be altered. Do we want a right to privacy? Good. Let's amend the Constitution.

As to your litany of horrors, I think it appropriate to point out that virtually all of your named activities (Can I surf the internet for porn? Can I talk about dirty books with my friends? Can I go to S&M clubs?) would be protected by the 1st Amendment even if Roe were overturned. (But, try to print something about POLITICS close to an election, and you have no rights whatsoever!) As for birth control, I doubt that even if the Court backed the bus up to where the prior Court first drove off the road and reversed Griswold, none of the states would outlaw birth control today. Just as very few would put any meaningful restrictions on abortion.

You shared a story, here's mine: A friend once told me that she could never vote for a Republican. Why? Because she would not do anything that would risk her right -- or her daughter's right -- to an abortion. Nothing was more important to her in determining which candidate to vote for and she just would not believe a Republican was being truthful if he claimed to be pro choice. She made a very interesting and passion filled argument. It lasted a good half-hour. At the end of the discussion I asked a question. (It was the asking of the question that ended the discussion.) I asked, "How, exactly, will the election of a Republican as mayor put your right to abortion at risk?" She said that, as a man, I would never be able to understand and left. She was right. I have never understood.

Kate, I sense in you that same level of passion. I suspect it energizes the logic centers in your to be able to perform the acrobatic feats necessary to be able to understand my friend's concern.

After Roe, the battleground has shifted to the judicial nomination process, because after Roe, that's the only place that real change can be made.So yes, Reagan Fan, overturn Roe, but don't think for a minute that the debate will lessen or be forgotten.

Well, I don't suppose we'll stop debating the issue in a post-Roe America, but I'm hopeful for the beneficial effects it will have on our politics. I'm thinking mainly in terms of public policy.

There's no getting around the fact that a lot of the big issues are national in scope: trade, healthcare, foreign policy, the environment, taxes, fiscal policy, entitlements. I'm talking about those non-social public policy topics that interest wonkish people like me.

Now, having certain opinions about abortion, I find it next to impossible to pull the lever for Democrats in federal elections (because of the eventual ramifications for the courts) -- that's my problem, not yours. But the thing is, I'd actually like to have the option of voting Democrat now and again. Not that I'm a big fan of the donkeys on most of the aforementioned wonkish issues. Still, I'm sure I'm not alone in being a Republican-leaner who's finding the GOP to be running increasingly high on the suckitude scale in lots of ways. I mean, what's up with the country's horrible broadband service? Didn't America, like, always used to lead the world in telecoms? I can name about a dozen other areas for discontent. Deficits. The drugs plan for old people. The complete, utter lack of meaningful reform of taxes or entitlements. Giving more money to Kansans than New Yorkers for homeland security. Darwin. The upcoming Berlin Wall on our southern border. Please don't get me started.

So, I guess all I'm saying is that, if Roe (and every other freakin' social issue) could be sent back to the states, our politics would surely become more productive, and a lot of needed reforms might actually get enacted.

Joe Magarac said: "In short, the tumult of the sixties is over: most people are familiar with both sides of the question, know where they and their neighbors stand, and will live with the results of putting the issue to a legislative vote."

Yes, of course. Just as they live with the drug laws. Those drug laws have made it impossible to get drugs where it's against the law.

Fifth, to me the ultimate point is to reduce abortions without turning women into breeding farms

Hey, am I the only one who thinks this just about ruins Jane's entire post? Look, women weren't "breeding farms" in the '50s or early '60s (perhaps excepting some tiny Mormon enclaves--not enough Muslim ones in those days to merit any mention) so why even mention this as a possibility? It's not.

Thank you, Kirk.

I found it rather insulting, since my grandmothers had four and five children-- not because they were "forced" to, but because they wanted children. One of them is one of 13 surviving, and the other is one of three children. When they were tired of having children, they made sure they didn't get pregnant.

I have a co-worker who does not much care for the president or his party. A typical conversation:

Him: "Just how stupid is Bush anyway?!"
Me: "Nice talkin' to ya, pal."

Yesterday, he was raving about how "the GOP is completely controlled by the Religious Right" and how we are all screwed as a result. (At least he didn't use the word "handmaiden".) I let him rant for awhile, then:

"Republicans control the White House, the Congress, most state houses and most state legislatures, right?"
"Unfortunately."
"And most of the judges on the Supreme Court and the federal courts were appointed by Republicans. This Alito fellow is no doubt a Republican, yes?"
"Yes. Him and that racist Roberts!"
"So the GOP basically controls all three levels of government in this country, right?"
"Definitely. We're totally screwed."
"Then why is abortion still legal?"
(pause) "What?"
"If the Religious Right controls the GOP, and the GOP controls America, then why is abortion still legal? I mean, banning abortion is Job One for the Religious Right, isn't it, and they've had many years in which to do it. So how come?"
(long pause) "Well, they would ban it if they could."
"But they can. They run the country: the executive, the legislature, the courts. But they don't. How come?"
"......."
"Maybe most Republicans aren't religious nutjobs. Maybe they don't care about abortion that much. Isn't that possible?"
"Gotta go."

I'm an obstetrician, and I just want everyone to know that there is no such thing as an emergency abortion.

First, some terminology clarifications.

Medically speaking a miscarriage is a spontaneous abortion. This may be a medical emergency if the bleeding is heavy and prolonged. In that case the patient will be taken to surgery and the miscarriage will be completed as the patient had (med speak again) an incomplete or inevitable abortion.

The lay term abortion is in med speak an elective or theraputic abortion. In no way is it an emergency. Elective means the patient chose the surgery, emergency means there really isn't any choice.

So really there are no emergency elective abortions, that's an oxymoron.

the Court's discovery of an unarticulated right to privacy in the Constitution has led successively from one surprising decision to another even more surprising.

You have it exactly backwards. The right to privacy is not explicitly in the Constitution; you're right about that. But that doesn't give the gov't permission to take that right away, in fact the Constitution says so ("The enumeration in the Constitution of certain rights shall not be construed to deny or disparge others retained by the people.") If you think the Constitution gives the gov't the right to tell you what birth control you can use, you are sadly mistaken.

Hey, am I the only one who thinks this just about ruins Jane's entire post? Look, women weren't "breeding farms" in the '50s or early '60s

I think the point of that was to emphasize the two extreme positions: e.g. those who would (in effect, probably not literally) chain women against the wall and pull babies out of them, versus those who argue that the woman has no accountability whatsoever, in spite of the fact that the reproduction process places chains of responsibility upon others.

The current situation of abortion is distressingly close to the latter extreme, which I believe was the point of Jane's claim (if I may paraphrase): "We shouldn't be at either extreme because both are ridiculous and the current extreme is polluting the national public policy debate."

You have it exactly backwards. The right to privacy is not explicitly in the Constitution; you're right about that. But that doesn't give the gov't permission to take that right away, in fact the Constitution says so ("The enumeration in the Constitution of certain rights shall not be construed to deny or disparge others retained by the people.") If you think the Constitution gives the gov't the right to tell you what birth control you can use, you are sadly mistaken.

It blew right past you; that's not an argument he made. Abortion is NOT only a form of "birth control" as you imply, especially under our current legal structure's other opinions about the reproduction process (manslaughter if a pregnant woman miscarries from a blow, a father's child support obligations, parental obligations to support a pregnant minor, etc). That's merely a cheap rhetorical device intended to allow idealists to avoid confronting any arguments to the contrary.

AT had it correct: it's about conflicting rights. You may disagree about whether the unborn or any relations of the woman should have rights, but clearly all of them do in our present legal framework, and that's not a constitutionality issue. When there is a conflict of rights and the constitution is silent about the resolution, the only proper way within the US framework is the legislature, federally if constitionally permitted or at the state level otherwise.

Alternately, in the event that there is broad national concensus on the nature of the right, a constitutional amendment is obviously the superior option. At that point the constitution is no longer silent and the right is formally enumerated.

Ivan,

You have it exactly backwards. The right to privacy is not explicitly in the Constitution; you're right about that. But that doesn't give the gov't permission to take that right away, in fact the Constitution says so ("The enumeration in the Constitution of certain rights shall not be construed to deny or disparge others retained by the people.") If you think the Constitution gives the gov't the right to tell you what birth control you can use, you are sadly mistaken.

The problem is that until someone decides which rights are and are not "retained by the people," we don't know which they are; and we have no particular guidance even after one such case has been decided about what will come next. I presume you don't think the Ninth Amendment means "anyone can do anything." Therefore, it must encompass some alleged "rights," but not others. The whole question is how to separate the sheep from the goats, as it were, and we've no guide apart from what the Supremes in 1973 (no, further back, in Griswold — didn't look up the date) thought expedient.

To be honest, I'd rather not be governed on that basis. There's absolutely nothing in your formulation to prevent, say, the SCOTUS from taking a cue from France and declaring that the right not to be offended by the sight of people bearing religious symbols or attire overrides the latter's First Amendment rights. I mean, call it an unenumerated right and, hey presto, it's enforceable Constitutional principle; and the only further question would be whether the offense of seeing people wearing crosses or hijabs is a worse harm than is forbidding wearing them.

Hypothetical, obviously, and I don't imagine for a minute this or any conceivable SCOTUS would do any such thing. My point is that under your interpretation of the Ninth, nothing would be there to stop them if they felt like it.

Ivan - I'd feel like I were piling on if I were to add much to what Michelle and anony-mouse have already contributed in my defense. While you might think the Constitution has always protected your right to use any form of birth control you prefer, my point was that, until Griswold, no one had yet identified that "right" in the text of the Constitution. Griswold turned the Constitution into a black hat from which the magicians on the Supreme Court could pull any "right" they might conjure up. That's just not how it's supposed to work. It makes a mockery of the rule of law in that, if you don't know what the law is (until after the Supremes do their magic act) it's hard to be ruled by it.

Of far less importance, I'm curious why you used the phrase "you are sadly mistaken" to describe my state of mental confusion. Why not just "mistaken" if not "happily mistaken"? Did you think your revilation of my error would somehow shock or sadden me? If so, you were mistaken.

The constitutional justification for abortion is fake: the place to permit abortion, if you so want (and I would recommend it), is in statute law. Surely everyone who is both intelligent and honest must agree. So the profound question is "how is the US to prohibit its present sytem whereby the Supreme Court routinely trespasses on the powers of government and people?" Without a good answer, constitutional government is at an end.

No precedent on National Security, huh; in re Milligan, Quirin, Korematsu, Kanazaki, Eisen-trager, on the detainee front don't count;
as well as In Re Sealed, and a series of other
cases, too numerous to count on the surveilance
front. Tatum v. US, might have applied, but Rehnquist the only justice with any credentials
to evaluate the program, disqualified himself.

Nothing in the Constitution. How have we managed to ignore the Ninth amendment for two centuries? The legal profession should be ashamed.

I'm sure the framers didn't have abortion in mind when they wrote that amendment; they wrote it knowing full well that their contemporary prejudices wouldn't last forever. It is deliberately open-ended.

Most legislation, in light of the Ninth, is illegal.

For all those worried about some imminent reversal of Roe, I would just like to point out that even when Alito is confirmed, Roe will still be upheld. There will be 5 votes for it: Kennedy, Ginsburg, Breyer, Souter, and Stevens.
Thomas and Scalia are obviously for reversing it, as Alito seems to be. In my mind, Roberts is actually somewhat of a question mark and given the way Republicans' nominees tend to drift left, I wouldn't count Roberts as a vote against Roe until it happens.

Of course, Stevens will be 86 this year, and Ginsburg will be 73, so if one of them retires, there'd be a chance.

Of course the fact that these Justices can hang around forever should also probably be a cause of concern. What would be wrong with a term limited to 20 years?

Of course the fact that these Justices can hang around forever should also probably be a cause of concern. What would be wrong with a term limited to 20 years?

Nothing, so long as you amend the Constitution first although personally I?d prefer it if we term limited members of the legislative branch (12 years per House) since that seems to be the source* of most of these problems.

* Although IMO the responsability for the problems in a republic usually belongs to the people in the electorate first and foremost.

I thought I'd try to steer this discussion back in its original direction: exploring the ways in which the Roe issue (as distinct from the abortion issue) has effectively hijacked the judicial nominations process while more generally crowding the public forum and preempting debate on other matters -- including abortion itself.

I, for one, would like to see the Supreme Court overturn Roe. It's unsupported in the Constitution. It's uncomfortably permissive in the face of widely-held and valid concerns about the status (the rights, if you will) of the unborn. And it's a naked usurpation of legislative authority in circumstances where no "market defect" in the legislative process (such as a systemic failure to weigh the interests of a minority group) can be shown to exist.

But there's another reason to support the overturning of Roe: the potential of a political realignment in which the Republican Party no longer can persuade vast numbers of middle-class and lower middle-class Americans to vote against their economic self-interest. I think the Republicans greatly under-appreciate the contribution of Roe to their continued political dominance. I think that the Democrats and other progressives also fail to recognize how Roe, compared to other "wedge" issues, is uniquely compelling.

The Roe issue combines a values debate about sex, morality and personal responsibility with a culture debate that pits the secularist elite against church-going masses with a majoritarian debate about the substitution of judicial authority for popular will with an ethics debate about what it means to be a living being with the status of a "person" under our laws and in our society. No other wedge issue -- not gay marriage, not affirmative action, not school prayer -- has all this going for it.

Thing is, neither the Republicans nor the Democrats seem to recognize the unique power of the Roe issue. The Republicans appear to think that if Roe goes away, they will still be able to distract the middle and lower-middle classes with gay marriage and evolution and other shiny toys. The Democrats appear to agree, seeing red-state voters as an ignorant and hateful mob for whom Roe is just one battle in a crusade against the Enlightenment.

I think this grossly underestimates the intelligence, tolerance and compassion of this part of the American public. Indeed, I think that if Roe is overturned, red-state voters will look at the values/culture issues that remain on the agenda, weigh them against the impact of the Bush Administration's policies on their economic security and the likelihood of seeing their sons and daughters sent to fight wars without end, and vote against the Republicans in droves.

I can understand the reluctance to gamble with the lives of women for whom Roe guarantees access to a safe abortion. (And I can understand the unwillingness to capitulate to those elements of the anti-abortion movement -- the "except in cases of rape or incest" minority -- who have made it clear that their chief concern is not protecting the lives of the unborn, but minimizing the frequency of female orgasm.) But I have to say that there is a larger issue at stake: whether our national government will continue to be dominated by a party that has abandoned its historical devotion to limited government in favor of its systematic abuse of public power for private ends. I think that end of Roe may well mean the end of the current, dysfunctional political alignment. Maybe even in time for 2008.

Nothing, so long as you amend the Constitution first although personally.

Thorley: the constitution says nothing about how long justices may or may not serve; about federal judged it says merely that "...the judges, both of the supreme and inferior courts, shall hold their offices during good behaviour."

Congress clearly has the power to legislate a time-limit on SC justices and no ammendment is required.

RvW debate is always so clinical, a bunch of legal mumbo-jumbo. Most avoid discussion of what it really means. I'll give you a clear picture.

22 years ago my wife walked into the clinic to "cure" an incovenient pregency. But at the very last minute, she decided she just couldn't do it. Today, my youngest daughter has just started medical school. She is a wonderful young person, very caring and loving, full of energy and hard working (yes I'm a proud papa). There isn't a day that goes by where I don't thank my lucky stars that my wife decided to choose life (and inconvenience).

This is what RvW is all about - don't sugar coat it. Regardless of whether or not you can somehow wrench the right of abortion from out between the lines of the constitution, we need to be asking ourselves if the willful killing of a fetus for the sake of convenience is a good or an evil action. And, is the right to abortion something intelligent people equate with freedom?

. It's unsupported in the Constitution. It's uncomfortably permissive in the face of widely-held and valid concerns about the status (the rights, if you will) of the unborn.

Ah but where in the constitution are we to find "rights" for the unborn? I don’t see it, do you? For the Supreme Court to start talking about the "rights if the unborn" is a clever bit of judicial activism that seems to escape everyone when discussing this issue. The Founding Father clearly never considered that an unborn fetus to have rights when they didn’t even consider many sentient human adults to haves full rights.

In order for Roe V Wade to be a conflict of rights you need to have two parties where rights come into conflict and unless your willing to declare, through judicial fiat, that the unborn has rights then there is no way on earth that you can say that Roe is a about competing rights.

On the other hand if we assert that the unborn has rights, the same why the court asserted that corporations have rights, unconstitutionally through judicial fiat, then the idea that over turning Roe simply sends the question back to the states is naive at best. The question could not be sent back to the states because if the unborn has rights then states cannot take those rights away under any circumstances. Then the criminalization of abortion becomes the law of the land and the fight begins anew because any constitutional jurisprudence that has the rights of the unborn as a basis is just as bad law as people now claim for Roe.

I can turn the argument back and say if you want the unborn to have rights, then you need to pass a constitutional amendment.

And a lot of things are unsupported in the constitution that no one seems all that motivated to change, like the idea that corporations are a legal person, the right to “freedom of association”, money = speech, I could go on.

Rick --

I have the distinct feeling that you read as far as the first half of the second paragraph of my post, cried "A-ha!" and then banged out a breathless reply challenging an assertion I didn't make and pointing out the flaws in a logic I didn't use.

One of the (many) defects in the current political discourse is the way the term "rights" is always used to connote something legal and absolute, trumping all other considerations except equally absolute, competing legal rights, in which case the outcome must be determined by a court. You've taken that a step further still, assuming not only that I'm talking about the unborn having absolute legal rights, but that these rights are or should be constitutional.

What I was actually talking about, and what you quoted yourself, was "the status (the rights, if you will) of the unborn." As stylistically precious as this locution may have been, what I was trying to do was avoid having anyone jump to the conclusion that I was asserting legal (much less constitutional) rights on behalf of the unborn. Obviously, I underestimated your reflexes.

Maybe instead of the "rights" of the unborn, I should say the "interests" of the unborn. That way, we can adopt a linguistic convention in which conflicting "rights" are balanced by the courts while conflicting "interests" are balanced by legislatures. Does that work for you?

By the way, I agree with you that, barring amendment, the unborn are not "persons" within the meaning of the Constitution.

Further by the way, did you even read the rest of my post? You might agree with its conclusions.

Jeff

Jeff,

No, I read your post, and although it is a thoughtful post I still don't buy the idea that Roe is somehow the watershed decision of the ever expanding federal government. I find many other decisions, ones that nobody is talking about overturning that have a much bigger impact, money = speech for one.

I also don�t think that overturning Roe will make any difference in the current political dysfunction; in fact I would argue that the current political dysfunction is part of the DNA of a �winner-take-all� political system. Roe in this case is merely a symptom of a larger problem.

Of course this is opinion and arguable but...

Rick --

I certainly see your point. Overturning Roe may remove the most significant "wedge" between the Democratic Party and its largest and most natural constituency, perhaps resulting in a dramatic political realignment, but obviously it won't change the electoral process itself.

For that kind of "DNA" change, the Supremes would have to overturn Buckley v. Valeo, as you point out (although I am not at all sure I agree that it should be overturned), or, as I fervently hope, find some way to impose constitutional limits on the gerrymandering of congressional districts by state legislatures, which has gone way beyond flagrant, and which has made the general election a foregone conclusion in all but a few House races, which are decided instead in the primaries or caucuses by the party faithful, for whom extremism is no vice, giving Congress an ideological distribution that is, like, totally bimodal.

But I digress. Anyway, thanks for the conversation. I'm adding UnSpecified Chatter to my links .
Cheers.

Jeff

'..the debate over abortion is overshadowing debates which I think are more important".

Killing 40 million babies is pretty important. Apart from harm to the babies, it destroys the psychological health of society. If you want to debate when and whether these are babies or foetuses or objects, I say that every pregnant woman I've met thinks of her foetus as a baby...most pregnant men too. What could be more guilty than to kill your own child, even if you call it a 'choice'?

"the "except in cases of rape or incest" minority"

Actually, the "except in case of rape, incest, or health of the mother" category is the majority. Just FYI. The number of people who support "abortion on demand" is vanishingly small.

Instapundit thinks a right to abortion can be found in the Constitution. He says look at the IXth Amendment.

Comments are Closed.