Patterico, “Overturning Roe with an Incrementalist Approach”:
Judge Alito has been described in numerous reports as a cautious and conservative jurist, respectful of precedent and deferential to government. What does this signify for the prospects that he might be a vote against Roe v. Wade? It’s tough to say.
Judge Alito’s conservative record strongly suggests that he would be unwilling to read new rights into the Constitution. But his cautiousness also suggests the possibility that he could be reluctant to overturn a precedent like Roe.
Incidentally, the same holds true of John Roberts. Both Roberts and Alito are brilliant and accomplished jurists. In broad strokes, they share President Bush’s philosophy of judicial restraint and conservatism. Conservatives have no business opposing them. But neither judge is a clear vote to overturn Roe.
True. Nor was Harriet Miers—though her evangelicalism suggested that she was a likely candidate to oppose it. Still, the problem most legal conservatives had with Miers, let’s remember, was her perceived pragmatism, which issued from a background of thinking through legal positions politically. And so it was quite possible (as Paul Deignan argued, often convincingly) that Ms Miers would have voted to uphold Roe, reasoning that the right of women to self-determination should necessarily override Ms Miers own personal and religious beliefs—a decision that would have (sadly, in my opinion) been held up as proof of her “not being an ideologue.”
Alito and Roberts, on the otherhand, might reach the exact same conclusion—that Roe be upheld, despite it’s being suspect law—the difference being that I have more trust in the integrity of the legal thinking both Alito and Roberts would be drawing on to reach the decision. Roe, it seems to me, would be terribly difficult to overturn—and not just politically. Stare decisis and a minimum finding of implied privacy rights would be enough, I suspect, to uphold Roe—and I honestly believe that neither Alito nor Roberts would vote to overturn it.
And I am fine with that, legally speaking.
But what I would like to see happen is, as Patterico notes (drawing on arguments made by liberal ConLaw prof Jack Balkin), a narrower reading of the law by future iterations of the Court. Which is to say, that while an outright ban on abortion will remain illegal, there is no Constitutional reason why individual states should not be allowed to place reasonable restrictions on abortion as a way to reduce their numbers provided that women aren’t directly coerced.
I’m prepared to be dissuaded on these points—and I know a lot of my libertarian and staunch pro-choice liberal readers will be ready with arguments to try to do just that. So please, discuss. For the record, I am (reluctantly) pro-choice, but I believe that the state has an obligation—and democracy a right—to work to restrict the number of abortions.
I am very interested in hearing all sides.
The title of your post is a fortnight late. What a shame. As to the content of your post, I agree that neither Roberts or Alito are likely to overturn Roe, at least not for a good decade or so, by which time (pure specualtion here) technology will likely have dramatically reduced the need for and number of abortions. By then, restoring the Constitution on this issue will have little practical or political effect.
I’ve always found the technology argument very compelling in the long run, PDS. In the short run, though, as earlier viability of the fetus is juxtaposed against the almost universal right to abortion on demand, the debate is likely to get even MORE heated.
Roberts seems less likely to overturn, at least based on what we know about each man. Still, this kind of speculation is premature.
I really don’t understand why so many think overturning Roe would be so politically problematic. Each state woule enact its own laws, and presumably, each state would be relatively happy with its laws. Now many New Yokers will be outraged Mississippi have abortion on demand, but I don’t see that being a politically disastrous. If anything, I would think democratizing abortion will lead to the softening of positions and rhetoric, and the removal of this issue from the political forefront. Again, maybe I am wrong, but that is how I see it.
There are only two sides.
Ted Kennedy’s theory that any changes to Roe means forcing women back to coat hangers in back alleys and the fundamentalist’s demand that Roe be overturned and abortion made illegal any time any place.
I like decriminalization. Neither legally permit nor prohibit abortion. Get it out of the public debate. Scaring women has been 99% of the liberal agenda and their best fund raiser.
If states want to legislate, let the ensuing furor be on their heads. Women should be free to seek medical help and advice from their physicians, not abortion clinic personal looking for customers.
Balkin:
Assuming there is some master strategy, it seems unlikely to me it would be to increase both the numbers and problems of a primary Democratic bloc.
I have no problem with trying to whittle Roe down into something less ominous, if that is possible. It seems the best approach would be for Congress to step to the plate and pass a real amendment to fix it up the right way. I see no chance of that happening, and that to me is more ominous that anything the courts can do.
Sounds exactly right to me, just how do we get there from here?
Abortion, by itself, ain’t going away. It’s a medical procedure not a social issue. It must be legal because it might be necessary. The social issue is abortion as birth control. Society’s acceptance of abortion=condom can only be changed by a concerted effort to “badmouth” the operation. It’s worked for smoking over the last couple of generations, it’ll work for this.
As far as Roe, the feds have a bad habit of taking decisions from the states. This ruling will be overturned eventually, after we get a better class of jurists on the Supremes.
I am not lawyer, I cannot argue legalise. I can only show you this, to prove clearly an umborn baby is clearly human.
I can also point to this how the entire case of Roe v Wade was based on lies.
New technology has certainly given us a window to the womb, which would sway the debate our way, if we could only have the debate on a national level
No one has convinced me yet that women’s lives are better off because of abortion. All evidence that I see points to women being miserable about it. People say it is a necessary evil, but is evil ever really necessary?
The heart is beating by 6 weeks, brain waves are detected. No abortion is performed before then.
Why can’t the things we use to determine death, brainwaves and heartbeats, be used to determine life as well?
For those concerned with rape, incest, and health of mother…Pass that law tomorrow allowing only that, I will dance in the streets. Going from 4000 a day to maybe 40 abortions a day would please me greatly.
By all means, pass it back to the states; that’s where it should have stayed in the first place.
Women in a “dry” state who desire an abortion can travel to a “wet” state to obtain one. We can’t claim the travel represents an onerous burden since we already subject many pregant women to it, thanks to John Roberts; I know one woman from Pennsylvania who had to travel across two state lines to find an OB-GYN who would handle her pregancy because of that little punk dwarf’s class-action thievery…
The key thing for me in the Roe debate is that the original court essentially legislated the issue, taking it out of the hands of Congress and the states—which, to my mind, is overstepping its authority.
I want abortion to continue to be legal, but I’d like to see Roe overturned, because it’s not just—as some call it—“bad law”, it just plain isn’t law. Of course, case law has grown in importance over the decades such that it is considered on par or superior to actual law, and in general, I’d rather have the courts issue a yea or nay on certain laws or provisions therein, and leave it back up to the legislatures to correct or change what the court voted down—this in keeping with the separation of powers that is so essential to making sure the people are more closely in control of the rules that govern us.
Politically, what baffles me is how the Republicans haven’t been able to sell federalism when it comes to this and other issues. Too many are content to use fed power when it suits their cause but decry it when it doesn’t. I understand it might be difficult to tell the Christian base that we’d rather let the states decide—but then you tell them that they have an opportunity to influence the debate at home, where they’d have more power. I wouldn’t be opposed to having different rules for abortions in Alabama than Oregon. There’s nothing undemocratic or unfair about that.
Overturn Roe. Let the states decide.
From personal experience I know that abortion is a really crummy form of birth control. It’s invasive and traumatic for both male and female. Having said that, I still can see the need for abortion and crimanlizing abortion is not an answer. As a previous commentator indicated, abortion as birth control should be frowned upon. Perhaps off topic, but paternity tests may help resolve the issue, particularly if the spouse (common law or otherwise) is assured the baby is their progeny.
TW “third” I am unconvinced that a third party (i.e. the state) has any authority on such personal and difficult decisions.
Okay, can we just please not use “dry” and “wet” for this?
I mean, just… eew.
I am guessing you are actually refering to John Edwards.^^
PDS writes, “By then, restoring the Constitution on this issue will have little practical or political effect.”
And I wonder, when would restoring the Constitution ever have little practical or political effect?
Richard Mac’s wet/dry point is well-taken. I’m sure the NARAL types would be able to organize interstate bus convoys for the hapless aborters (abortees?). In fact, I know there are at least 600 buses available in the city of New Orleans for just such as a use.
Look out. Here comes the Forceps Express!
I assume when you talk about the “technology” argument you’re referring to the possibility of artificial wombs, so that babies can be extracted and still nourished/brought to “term” in laboratories.
But I think that underestimates the cultural problems, which have to do with the fact that both men and women would often prefer that the fetus/baby be killed, versus feeling that they’ve “abandoned” him/her. It’s apparently a huge barrier for many Latino women, who seek out abortions because otherwise they feel like they are “bad mothers.” And it was my erstwhile boyfriend’s motivation for pressuring me into my abortion when I was 20 (he was 22 or so, and [ironically] an adoptee).
I’m not sure what the numbers are, but I know there are late-term abortions of healthy babies, wherein the motivation is still “I don’t want to give birth,” even though the child is nearly at term. It’s hard for me to understand, of course. I kind of feel like “hey, if you’ve carried the baby for 8-9 months, why not go ahead and give birth?”
Attila Girl,
If you were referring to my comment, no, I meant technology like the 3-D images we now can look at in the womb. Like
It makes me sad that we have just accepted the death of an unborn baby as a part of our culture.
Nope: I meant the remarks above by PDF and Jeff G.
What makes me crazy is that our laws and culture don’t just permit abortion: they practically mandate it. Even in Western Europe, girls and women can’t just have abortions without at least signing a piece of paper stating that they’ve thought it over, and really feel it’s necessary.
The pressure on a young woman to abort a fetus is simply overwheming.
That’s why I think a lot can be accomplished by changing attitudes. The word “murder” simply shuts down dialogue with pregnant women and girls, but if we, as a culture, can encourage the “take a deep breath, and think about whether adoption might work for you” approach, we could see the statistics drop drastically.
So although I’m pro-choice and you are not, we have plenty of work to do together before it’s time to start arm-wrestling over how many limitations–cultural or legal–there should be.
True. I do believe that most people in the US are under the impression that we have restrictive abortion laws, but that is simply not the case. We actually have tremendously liberal laws.
As with the argument about late term abortion. Whatever it is called an whatever its numbers and however difficult it may be to get a doctor to do it- it is legal to abort a perfectly healthy baby just before it would otherwise be born.
I do wish adoption were more encouraged- it seems to me that it takes a very special woman to give her baby for adoption anymore. Read a daily kos thread about abortion rights, and you find women saying they would rather abort than know their baby is out there in the world, being raised by someone else.
But when I fly between Asia and the US, there is always a fresh group of new parents bringing their adoped babies home for the first time. The market is obviously there.
The line is long for infant adoption here in the states, regardless of race, handicap, or history of parental drug use.
If I can’t have her, no one can have her. Another blow for equal rights.
Just Damn.
Without attempting to recreate his arguments here, I’ll just say that I’ve read “First Things” by Hadley Arkes and found his take on Roe v. Wade persuasive.
http://tinyurl.com/a5o9p
For what it’s worth from an anonymous commenter…gin gimlets are second only to martinis.
Yuuuuummmmmyyyyyy. Or maybe 3rd behind a Guinness.
That is like saying, “For the record, I take it up the ass, reluctantly, of course.” You either suck dick or you do not suck dick. That is to say that you either support the systematic butchery of babies or you like to give them hugs and kisses. Which one is it Goldstein?!!!!!!!!
If I could get pregnant, I’d be better prepared to speak absolutely. As it is, every time my wife has her period I’m helping to kill a baby by not inseminating her and having a new young’n.
Froggy, no need for such language. It only divides.
Reluctantly pro-choice is usually those who know in their heart abortion is wrong, but still think there are reasons out there where it should be legal. (I also think they shudder at those who share their beliefs)
But as I said before, let those be the reasons it is legal and I will dance in the streets.
Jeff, I have no idea what you mean by having a period is helping kill a baby? The baby is not there obviously.
Whoa. This is completely not the same. (I’m gonna apologize in advance for the way I say the next thing… the slang sounds less offensive to me than the actual term.) It’s not abortion every time you jack off just because you’re not using sperm to conceive… and the death of every sperm of yours that doesn’t make it to an egg, even if you do inseminate your wife, is not murder. Similarly, an unfertilized egg doesn’t have the potential to become a human being, so the body’s natural disposal of it is not murder. I don’t think people who are against abortion are against it because it prevents formation of a human being. They’re arguing that it destroys a human being that, although it may be very young, is already formed. A fetus has all of its genetic material… it needs nutrients and incubation, just like a baby outside the womb, but it’s fully capable of growing to adulthood if those conditions are met. An egg sans sperm is not, and so its death is, in my opinion, impossible to regard as the end of a human life.
I’m rambling. I hope all that made sense.
To the “pro-choice”amongst us:
It’s going to get really fun when technology gets to the point where a human baby can raised from zygote to infant without the assistance of a woman or her womb. Why? Because when that day comes, every fetus will become theoretically 100% viable from the point of conception. Since Roe’s reasoning ties any abortion right entirely to the theoretical viability of the fetus without even mentioning the mother or any rights she might have, this means that the second such technology is proven,ALL ABORTION WILL BE ILLEGAL PER ROE v. WADE. If women are to have any reproductive rights in this country AT ALL, Roe has got to go.
To the “pro-life” amongst us:
At the end of the day, it doesn’t matter what a bunch of old men in Washington scribble onto a piece of paper: woman have, have always had and will always continue to have the POWER to have an abortion regardless of it’s legal status. Banning abortion, like banning the consumption of drugs or alcohol, is simply beyond the ken of government to enforce, and as such an abotion ban would cause more harm than good, having none of the effects you intend. And the truth is, if God can entrust women with the power of childbirth, why can’t YOU?
:peter
Is your argument that if human beings have the power to do something, God trusts them not to abuse it? And therefore, the government should not regulate it? Because I, possessing muscles in my arms and forearms, as well as five fingers, have the ability to strangle a five-year-old with no difficulty whatsoever. I can also take hold of a knife and eviscerate the man walking next to me. I could get my hands on an automatic weapon and do some REAL damage.
If God entrusts me with the power to kill my fellow man, why should anyone want the government to control whether I can do it or not?
I share your ambivalence, Jeff.
However, I’m not sure that there is a principled reason as to why judges are better than state legislators when it comes to determining when life begins (that is to say, determining the precise moment in time when a fertilized egg becomes entitled to equal protection of the laws.)
Somebody, clearly, has to make that call, and since it’s not part of the Constitution, wouldn’t it be better—for all concerned—to reach a consensus on the issue through politics and elections, instead of distorting and politicizing the judicial branch of government? In any event, it’s the kind of thing that state legislators do all the time when they determine when the (unwanted) killing of a fetus constitutes murder.
Otherwise, if the voters of Louisiana and Utah are itching to prohibit abortion, why should I care? That’s the beauty of federalism—each state is its own public policy laboratory.
Peter,
You will have to tell me why then in the 40’s, 50’s, and 60’s, when there was virtually no birth control, why women didn’t have abortions in the great numbers they do today? Morals? Sure. But knowing something is illegal does restrain a great many people you have to admit.
You do know that the man who spearheaded NARAL and came up with the numbers of illegal abortions in 1972 that were used in Roe v. Wade admits to lieing about the thousands and thousands of illegal abortions. The real number was …71.
We have laws against suicide, drug use, prositution, and domestic violence, but guess what? People are still going to do that too.
Our laws tell us who we are.
You might want to think about that one.
The following exerpt from Hadley Arke’s “First Things”….
If you consider the logic of Justice Blackmun, in Roe v Wade, it’s striking in its lack of rigorous philosophic reasoning.
Blackmun’s judgment rested on the conviction that the court needn’t resolve the question of where life begins. “When those in the fields of medicine, theology and philosophy are unable to arrive at consensus, the judiciary is not in a position to speculate on the answer.”
So, within that judgment, Blackmun asserts the fallacy that the presence of disagreement indicates the absence of truth.
This idea he posits, that the question of “what is a human life and when can it claim protection of the law” as if it’s a question only of religious or theological weight and therefore one of private belief, is an assumption.
This assumption reflects a tendency in our public discourse to equate moral questions with matters of religious faith or private belief, which cannot be judged finally as true or false. It was as if the matter of abortion, as a profound moral question, was somehow cut off from the process of weighing evidence and testing arguments by the canons of principled reasoning. Justice Blackmun however, did not subject to the test of principled reasoning his own assumptions about the nature of the fetus and its standing in the eyes of the law.
getting back to the original point made by Jeff in the post….I don’t see Alito or Roberts charging in and changing anything in the immediate future. Roe is terrible law. Even my extremely Liberal Con Law professors pointed out what a convoluted piece of logic the decision is when reviewed in a Constutional sense.
I am morally opposed to abortion. That, of course, colors my opinion concerning the “right” of abortion, but not the legality of the issue. I do recognize a limited right of privacy in the Constitution and think Griswald is pretty good (flawed) law. Roe streched this right to illogical extremes. There is no reason why State legislatures should not have the right to pass abortion legislation they deem correct and corresponding to the wishes of the people.
Alito and Roberts will recognize bad, but existing, law for what it is, and begin the process of review. The problem with careful and concerned analysis of the decision is contained within the comment thread. Pro-lifers feel the act is akin to murder, and many leftists feel it is a super-right that trumps all others. Even reviewing the decision (in view of new technology or not) will result in “back-alley” abortions, millions of slaughtered teens, and zombies roaming the earth!!
Look, both sides need to mellow out. Review the law slowly and carefully and let the people decide. I think Alito and Roberts will do this. Read the Casey dissent carefully (unlike Shumer and Leahy in other words)and Alito’s cautious approach comes out.
Rightwingsparkle,
Are you saying that if abortion suddenly became illegal again in the US that abortion rates would drop to ‘40s-’50s-’60s levels? I think it’s more likely that the abortion numbers from that period are highly suspect, and not to mention relative to countless other variables.
And no Ali,
We agree: can ≠should; just because we can pass a law prohibiting abortion doesn’t mean we should.
:peter
Just because we agree on one general point, that can doesn’t equal should, doesn’t mean we agree on what should be done, Peter.
You believe we shouldn’t pass a law prohibiting abortion, I believe we shouldn’t allow the wholesale slaughter of unborn children. Those are two opposing views, although they may stem from the same initial conclusion about “can” and “should”. 