Countermobilization

I hadn't realized that Charles Krauthammer, America's worst columnist, is in the absurd "pro-choice, anti-Roe" camp:

Legalizing abortion by judicial fiat ( Roe v. Wade) instead of by democratic means has its price. One is that the issue remains socially unsettled. People take to the streets when they have been deprived of resort to legislative action.

I'm always baffled by these claims -- what's the evidence for them? Abortion is a controversial issue in Mexico. It's a controversial issue in Ireland. As best I can tell, it's a controversial issue anywhere you have large religious communities who strongly believe that fetuses have the moral standing of human persons. Which, indeed, is what you would expect topics remain "socially unsettled" for as long as there are major blocks of opinion that have significantly different views about that. Tax policy in the United States, for example, is entirely out of the hands of the courts. Nevertheless, the issue of tax rates hasn't been "settled democratically." Rather, it's the subject of constant legislative and electoral dispute.

Comments

I think Krauthammer's quite reasonable claim is that "settled democratically" is "subject to constant legislative and electoral dispute." I don't think he's saying that everyone must be happy with the outcome, but rather that people are more willing to agree to terms they otherwise would not if they agree with the process. That's reasonable. He remains as evil a widely known public figure as comes to mind, though.

Posted by SomeCallMeTim | May 12, 2007 2:07 PM

If you want to change tax policy, candidates for office are in a position to promise to do so, and voters are in a position to vote for them. That's what it means to decide a policy democratically, and it isn't the case for abortion in the United States.

Posted by Peter | May 12, 2007 2:13 PM

Ruth Bader Ginsburg made a similar, although far more well reasoned, argument in the '70s.

Whether or not the right to an abortion can be read into the Constitution, the decision truncated a political process that may have conferred greater legitimacy to the right by achieving a broader consensus of opinion.

Additionally, Roe's sliding scale approach to the issue has left it way too vulnerable to those who have argued that it as much a policy decision as it is one that is anchored in constitutional law.

Posted by Rich | May 12, 2007 2:16 PM

I didn't realize that an independent judiciary was no longer necessary (or even acceptable, apparently) to a healthy democracy. Presumably executive fiat is still OK, at least.

Posted by Aaron S. Veenstra | May 12, 2007 2:18 PM

An interesting point...I could not be more stongly pro-choice, but I do believe that this would be a less controversial issue were it settled legistlatively. That doesn't mean it [i]should [/i] be. It is fairly simple...if the pressure on the legislature were sufficient to ensure legal abortions, for the sake of the job security of said legislators, I think it carries a sort of weight Supreme Court decisions cannot. But if that is oppression of sorts, then how long shall we wait? Violations of individual liberty should not wait for popular approval.

That does not mean, as poorly written a decision as it is, that the ends of Roe are "wrong". Following the same logical conclusion, one could argue the ends of "Brown v Board" could have just waited for a legislative change. But one of the primary functions of the courts is to uphold unpopular, yet fundamental, rights of minority groups. If the right to control one's reproductive rights is a fundamental right, it becomes very hard to justify delaying granting them until the majority comes around, regardless of the unrest it creates in the short term.

Matt is right in the sense that this fight was unavoidable in some context. But I am comfortable with the courts granting individual liberties, however unpopular, in almost any context. Isn't that one of the primary reasons for the Supreme Court's existence? If reproductive control is a fundamental right (the crux of the quesion, I guess), the ease at how we arrive there is barely relevant.

Posted by Steve H. | May 12, 2007 2:25 PM

1. Charles Krauthammer, Americas' worst columnist? I beg to differ. Robert Novak is much worse. Could the fact that Krauthammer supports Israel and Novak bad mouths Israel be the basis of Mr. Yglesias' opinion?

2. Dr. Krauthammer also opposed the Brown vs Board of Education and one man one vote decisions. He apparently thinks that somehow these issues could have been decided by legislative action.

Posted by SLC | May 12, 2007 2:26 PM

I would distinguish Brown form Roe on the grounds that if the words "equal protection of the laws" are to have any meaning, it is beyond dispute that every student should have the right to attend the same schools.

There are no analogous words that unequivocally grant a right to an abortion, whether or not one believes that the right is contained within the penumbra of the document.

Posted by Rich | May 12, 2007 2:32 PM

This view will be worth the slightest respect once someone produces a conservative movement with a respect for honest administration, fair and open elections, and attention to the views of the public at large. Since the Republican Party is none of those things, and hasn't been for some time, and is not led by people interested in being any of those things, all this sort of call boils down to is "We want the fight where we have more unfair, illegal, and immoral advantages."

Posted by Bruce Baugh | May 12, 2007 2:37 PM

The comparison to Brown is weak. It's been over 30 years and nobody seems to be "coming around" to Roe. This is because there is a fundamental disagreement about when a person becomes a person. And it's not going to be resolved anytime soon, if ever. So you can say "the right to control one's reproductive rights is a fundamental right" all you want, but if half the population thinks that right is trumping another person's right to live, it's pointless.

Posted by withnail | May 12, 2007 2:49 PM

But people don't take to the streets about tax policy! It's not about good vs. bad or settled vs. unsettled. It's about having to look at people being angry on TV. So uncomfortable!

Posted by jhupp | May 12, 2007 3:01 PM

It's been over 30 years and nobody seems to be "coming around" to Roe.

Really? Support for reproductive rights hasn't budged in three and a half decades? And therefore, a strong majority of Americans supported said rights when the decision came down in 1973? I kind of doubt that.

Posted by Aaron S. Veenstra | May 12, 2007 3:07 PM

I call bad faith here. Matthew knows the anti-Roe pro-choice position is not "absurd."

Posted by Pithlord | May 12, 2007 3:19 PM

This seems to have become a general Roe v Wade thread (inevitable). So it's a given that it's not really a constitutional argument to talk about what certain majorities believe or what would bring societal harmony. It's more like philisophical realism. But reality isn't some abortion-free world. Cliche, I know, but the rich would leave the country and the poor would end up somewhere worse. Abortions would still be performed. That is not a high-minded argument, I suppose, but it is unquestionably reality.

Posted by Ste | May 12, 2007 3:20 PM

America's worst columnist

He must have been so happy when William Safire retired so he could claim this mantle.

Posted by Toast | May 12, 2007 3:33 PM

Tax policy in the United States, for example, is entirely out of the hands of the courts.

Nowadays, perhaps. But once upon a time, the income tax was ruled unconstitutional. So what happened in response was a constitutional amendment called the 16th amendment. Of course, Krauthammer never complained about how that Supreme Court decision deprived people "of resort to legislative action."

Posted by Dan the Man | May 12, 2007 3:37 PM

I agree with the "bad faith" comment. Matt may be "baffled" by people who want to reopen the issue after "we" have won, but I doubt if he really can't understand why people say that the Court's decision is Roe v Wade was a tissue of lies. Because it is a tissue of lies! This is perhaps the only issue, besides evolution, on which Dr. Charles and I agree.

Posted by Alan Vanneman | May 12, 2007 3:38 PM

I call bad faith here. Matthew knows the anti-Roe pro-choice position is not "absurd."

Posted by Pithlord | May 12, 2007 3:42 PM

I think MY in general gives the pro-choice anti-Roe argument short-shrift, but there's no question that Krauthammer serves it badly.

What's curious about the position is that there is a much more logical counterpart that no one holds: anti-choice, pro-Roe "I oppose abortion but the Supreme Court said we can't make a law so shut up about it already." Which would make this one more in a long series of examples where there are accomodationist liberals and no accomodationist conservatives.

Posted by Tony V | May 12, 2007 3:43 PM

"Abortions would still be performed. That is not a high-minded argument, I suppose, but it is unquestionably reality."

If abortion is actually "controversial" in Ireland, there's no real support there for making it illegal again.

I haven't conducted a detailed survey of non-Americans, but the European friends I do have are baffled by the American controversy over abortion for exactly the reality-based reason you specify: that *abortions would still be performed*, regardless of their legality.

Posted by James Gary | May 12, 2007 3:47 PM

youre a raging retard, yglesias. There is nothing in the least absurd about wanting your goals to be achieved via proper means.

Posted by pimp hand strikes! | May 12, 2007 4:00 PM

As best I can tell, it's a controversial issue anywhere you have large religious communities who strongly believe that fetuses have the moral standing of human persons. Which, indeed, is what you would expect topics remain "socially unsettled" for as long as there are major blocks of opinion that have significantly different views about that.

I dispose of your argument with a single counterexample.

Posted by Steve | May 12, 2007 4:06 PM

I don't think it's bad faith, but I have to disagree with MY on this. As a pro-choice person, I think it might make sense in the long run to shift the abortion question over to the legislative realm (the Roe decision does seem problematic). This shift would make it a more real, living issue and this could actually help neutralize it as the great talismanic bogey-man-in-the-closet employed so effectively by social conservatives to sway elections. Since the majority of the country is pro-choice, a real live legislative wrangle could demystify the issue. Of course, this doesn't address regions of the country which are predominantly pro-life...

By the way, Krauthammer is definitely America's worst columnist.

Posted by Warren | May 12, 2007 4:47 PM

Hey we invaded Iraq using democratic means and that meant that no one ever got up set about that decision!

Posted by Rob | May 12, 2007 5:08 PM

The reason I think it's bad faith is that MY has indicated his knowledge of, and sympathy for, arguments against judicial review in general. But he then says that pro-choice anti-Roe people don't even have an argument.

This post makes no distinction between the way people who have lost in a democratic process will view the legitimacy of their loss compared to those who have lost by judicial diktat. I find it hard to believe that MY is genuinely unable to see the difference.

Posted by Pithlord | May 12, 2007 5:13 PM

Re Warren

Wrong, Robert Novak is Americas' worst columnist.

Posted by SLC | May 12, 2007 5:30 PM

You are, of course, 100% correct. In addition to the countries you cite, 1)abortion was an extremely divisive issue at the state level before 1973, and 2)abortion is not a remotely salient issue in Canada although its abortion policy was established by the courts.

Posted by Scott Lemieux | May 12, 2007 8:24 PM

Really? Support for reproductive rights hasn't budged in three and a half decades? And therefore, a strong majority of Americans supported said rights when the decision came down in 1973? I kind of doubt that.

Actually, public opinion on abortion was basically the same in 1973. Legal first-trimester abortions have been the majority position since the late sixties; many pundits don;'t understand this because they have the bizarre belief that American legislatures are majoritarian.

Posted by Scott Lemieux | May 12, 2007 8:27 PM

It's not quite true to say that abortion policy in Canada was established by the courts. Parliament decriminalized in 1969, but requited approval by a therapeutic abortion committee in a hospital. This step occurred without any involvement by the courts.

The therapeutic abortion committee structure was struck down by the Supreme Court of Canada in 1988, but the plurality limited itself to procedural problems with that particular system and clearly left open the possibility of other abortion regulations, possibly even including an outright ban. New regulations were introduced but never enacted because both the pro-choice and pro-life sides didn't like them.

For the most part, abortion in Canada has been left to the political process. It is just that there is no political will to seriously regulate it. (Although the polls show that some regulation would be supported by a majority.)

Posted by Pithlord | May 13, 2007 1:02 AM

many pundits don;'t understand this because they have the bizarre belief that American legislatures are majoritarian.

But support for deciding things in legislatures does not depend on a belief that the political process does or should just implement the will of the majority.

Posted by Pithlord | May 13, 2007 1:04 AM

Why is this the issue above all others that courts are not supposed to settle as an independent judiciary? If Congress passes a law that enfringes on Constitutional rights and then the judiciary overturns that, is that somehow wrong?

I also find it odd when people claim there is no such thing as a right to privacy in the Constitution. For me, this says the Founders gave us a little to much credit. How would our rights be operable in reality without a right to privacy? Either they thought the Constitution and the Bill of Rights actually was there to protect citizens or they didn't. I doubt the Founders thought we would be so retarded as to dispute the idea that citizens should have some form of privacy.

Posted by Reality Man | May 13, 2007 3:34 AM

Pithlord--that's very misleading. First of all, the 1969 reform was not a "decriminalization"--abortion was still illegal if a woman could not get approval from the arbitrary committee. (Does Doe v. Bolton not count as significant policy-making by the courts?) Essentially, such reforms are just codifications of the actual practice under abortion bans--women with connections can obtain abortions on demand, women in rural areas are largely out of luck--with the exception that it becomes almost impossible to prosecute doctors as long as they don't try to open a private clinic to bypass the arbitrary committees. And it's true that Mogentaler (like Casey) leaves significant room in theory for legislatures to act, but the fact that they had no will to modify the most liberal abortion regime in the world makes cries of "judicial activism" more problematic. Its insistence on non-arbitrary construction and enforcement of statutes, moreover, makes the decision distinguishable from Roe in practice since abortion laws need those characteristics to stay on the books. There was also no will to alter the status quo ante, so it's bizarre to claim that Morgentaler had little effect and abortion has been "left to the political process."

Posted by Scott Lemieux | May 13, 2007 11:00 AM

But support for deciding things in legislatures does not depend on a belief that the political process does or should just implement the will of the majority.

Yes, but in the context of my argument this is a non-sequitur. I'm talking about how pundits either 1)infer l lack of popular support for abortion rights from the fact that it was illegal in 46 states in 1973 or 2)infer that there will be little change in the legal status quo if Roe is overturned because abortion rights are popular. Both of these require the belief that legislatures are majoritarian, and both are quite erroneous.

Posted by Scott Lemieux | May 13, 2007 11:04 AM

Morgentaler is in practice indistinguishable from Roe, I mean. (And given the backlash theory, who can you explain the lack of will? The whole point of the theory is that the American will to regulate abortion was a creation of Roe.)

Posted by Scott Lemieux | May 13, 2007 11:06 AM

Isn't pro-choice/anti-Roe defensible on several grounds?

Politically, Roe has been a rallying cry for the Right and a big source of votes for Republicans. While turning it into a State/Federal issue would be a big loss for abortion rights, it would help disarm Republicans.

Roe has been pure poison for the Judiciary. Judicial appointments are a terrible morass of litmus tests and political skulduggery. The result has been horrible for judicial integrity and intelligence. Smart people don't get appointed because they might "Go Souter."

There's no present opportunity to win hearts and minds on the abortion issue. If the issue was a State one, Right-wing states would be forced to live with their extremist policies. Their daughters and they themselves would be forced, in many states, to probably have babies from rapes. If they want to live with that, great, but no more will they be able to argue against abortion while enjoying its social benefits.

Personally, I'm uncomfortable with the breadth of power Roe attributed to the Supreme Court, because if the Republicans get a firm majority they can use it to f*ck us for twenty years or so. Historically, the Supreme Court has been an agent of repression and social control over Progressive legislatures. They attempted to overturn the entire New Deal. Yes, the Warren Court was great, but there's a reason Democrats rely more on Democracy.

Roe has also arguably led to Liberal overreliance on the court system to earn their goals, instead of on old-fashioned GOTV. We're only just now seeing liberal interest groups go back to basics to win votes, hearts and minds.

Roe is a tremendous asset and overturning it would inevitably lead to hardship and death among poor women. But there's nothing "absurd" with believing that the long-term political and social effects will be positive, especially if Blue states remain pro-choice.

Posted by Kevin! | May 13, 2007 12:07 PM

Courts are part of the democratic process, and the sustained attack on them as enemies of the people is a crucial part of the conservative movement's efforts to deliver us into the hands of people who really are anti-democratic.

Posted by Bruce Baugh | May 13, 2007 12:09 PM

heir daughters and they themselves would be forced, in many states, to probably have babies from rapes.

This is absolutely absurd, and a fundamental misunderstanding that is crucial to the abortion debate. The daughters of wealthy Republicans will pretty much never have to worry about obtaining safe abortions under any legal regime, which is precisely what allows for extremist abortion laws to stay on the books even when they're unpopular.

Posted by Scott Lemieux | May 13, 2007 1:54 PM

The Canadian experience warrants a more thorough examination (particularly in contrast to the silliness put forward by Krauthammer).

The abortion issue in Canada was, in point of fact, decided largely by the courts (1). Contrary to the comment made above, the legislative changes introduced in 1969 created only a limited exception to Canada’s abortion laws (allowing “therapeutic abortion committees” to authorize abortions in cases where they found that a mother’s life or health was at risk). Abortion in general remained criminal in Canada until 1988 when the Supreme Court struck down the section of our Criminal Code that dealt with the procedure.

It is true that the Supreme Court’s decision was somewhat narrow. The Court ruled it was unconstitutional to create an exception to the abortion ban and then simultaneously construct undue barriers (like “therapeutic abortion committees”) to the exercise of that exception. But that doesn’t fundamentally change the role played by the Court.

By striking down the use of therapeutic abortion committees (at least in their existing form), the Supreme Court’s ruling effectively created a new choice for Parliament and Canadians: allow legal abortion or create a new system. Had Parliament legislated a new abortion ban, without the therapeutic abortion committees, women and their doctors would have had no certainty that they would not be investigated or prosecuted after the fact for an abortion they thought was perfectly legal. Furthermore, abortion would have been performed arbitrarily--by only those doctors willing to risk imprisonment. It was in this context that Parliamentarians failed to pass a new law (or rather chose to allow legal abortion instead of opting for the other available options left open to them by the Court).

The truly interesting part of all this, though, is not merely that abortion is now a settled issue in Canada, but just how settled it is. Even the Conservative Party has been forced to adopt an official party policy committing a Conservative government not to introduce ANY legislation to regulate abortion (2). In effect, even the Conservative Party has adopted a neutral position on the issue.

(1) http://www.prochoice.org/canada/legal.html

(2) http://tinyurl.com/34uk6t

Posted by Anonymous | May 13, 2007 3:30 PM

Roe v. Wade is predicated upon a right to privacy that any honest person will have a difficult time finding in the Constitution (that such a right should be there doesn't change the fact that it likely isn't). Therefore, to some of us, a judicial decree legalizing abortion represents an unconstitutional example of an unelected shadow government making law, despite the fact that that body should not have that ability or the ability to tell, say, Kansas what it can and cannot permit unless otherwise specified in the constitution (i.e. under the commerce clause before judges allowed that to baloon).

I don't see anything in the above paragraph that is incompatible with the view that old white men in government shouldn't be throwing women in jail for making a questionable and difficult choice those men would never be presented with.

There's nothing absurd at all about being anti-Roe and pro-choice.

Posted by Steve W | May 13, 2007 6:04 PM

Obviously, Morgentaler had a big effect on the politics of abortion in Canada. Even if the Court would accept any subsequent abortion law, after 1988, the pro-choice position had the advantage of playing defence.

That being said, I don't think Canada is a counter-example to Krauthammer's point. A pro-lifer in Canada can still try to change the law through the political process. If she fails, this will be because most of her co-citizens don't agree with her. In the US, her only option is to try to elect Presidents who will change the composition of the final court. That reality has changed the American federal judiciary.

Obviously, the situation in Canada between 1969 and 1988 was not ideal from a pro-choice point-of-view. Still, at least in the major cities, a Therapeutic Abortion Clinic would almost always allow first trimester abortions.

Posted by Pithlord | May 13, 2007 7:22 PM

Re: Roe v. Wade is predicated upon a right to privacy that any honest person will have a difficult time finding in the Constitution

Please see the 9th amendment. This tells us that people have rights that are not mentioned specifically in the Constitution. Indeed, the notion that our rights are "granted" to us by the Constitution is historical nonsense, recalling the old royal charters whereby the Throne indulged its subjects by granting various special priveleges which could alos be taken away on a whim. The Founding Fathers would be spinning in their graves at any theory which assumed human rights were like that.

re: Canada and abortion rights.

I grew up in Michigan, 25 miles from the border. I cannot recall ever hearing about Canadian women coming to the US to get abortions because they were illegal in Canada. While Canadian abortion rights may not have been on firm legal footing de jure before 1988, I suspect they must have existed de facto (and not just in back alleys) with those abortion boards mentioned being mostly rubber stamp bodies. Otherwise Michigan abortion clinics would have been overwhelmed with Canadians.

Posted by JonF | May 13, 2007 9:30 PM

Look, the religious right doesn't care that it was a court case that took away prayer in school. That is, any vehicle for respecting the rights of non/different believers would have been unacceptable, whether it came from the Supreme Court or the state legislature. They still don't care, as the recurring prayer-in-schools cases demonstrate.

It's the same thing with abortion. And frankly, any "solution" that leaves any states with de facto or de jure abortion bans are not worth anything at all. Fundamental rights should not turn on the outcome of elections.

Posted by T. Paine | May 14, 2007 1:52 PM

Yglesias describes Krauthammer's position as 'absurd'. This is interesting b/c although I think that position is very misguided, I can understand how one could make that mistake.

Some posters have claimed that it would be better if we had reached the current legal regime through the legislature. While that is certainly true, it is also completely impossible. While most states would have eventually legalized abortion, conservative states would have imposed considerable hardship on poor mothers-to-be. Their would be a de facto ban on abortion for certain classes of women that would be very unjust.

Other posters have claimed that their has been a 'backlash' on this issue. I think they mistake the cause for the Republicans' use of this issue as a political wedge issue. It is not b/c the issue was decided by the courts. It is due to the general mendacity of the party and their proclivity for demagoguery. I mean, honestly, a congressman's position on Roe v Wade under the current legal regime is actually pretty much irrelevant. Do you think it would be any less of a wedge issue if Congress was deciding the legality of abortion? Thank you.

On the other hand, I recognize that some people see this differently. And while I would be reluctant to surrender the abortion rights of poor southern women (and I must remind everyone that this is what abandoning Roe v Wade would result in), I recognize that there are greater political causes to be fought for. And even though I disagree, I believe that reasonable people could come to the view that abandoning Roe v Wade could be politically beneficial to liberal interests.

But Krauthammer is, in general, absurd. And this specific quote is pretty questionable. Do you think pro-lifers wouldn't take to the streets on this if it were up to the legislatures? That sounds pretty absurd to me.

Posted by mpowell | May 14, 2007 2:53 PM

There's nothing absurd at all about being anti-Roe and pro-choice.

Given, as Scott notes over at Lawyers, Guns and Money, that Krauthammer has no problems with Bush v. Gore, in his case it most definitely is absurd.

Posted by LittlePig | May 14, 2007 3:45 PM

This tells us that people have rights that are not mentioned specifically in the Constitution.

But it doesn't say a "right to privacy" is one of them. That's one of the hoops Roe jumps through that makes me wince.

Any honest viewing will admit that the tenth amendment applies in a much more direct way (even if that viewer doesn't like what would result).

About a year ago Dan Savage suggested that Democrats introduce a constitutional amendment guaranteeing a right to privacy (which, apparently, polls extremely well). To my mind, that's a much better option for pro-choicers like myself than defending the (likely wrongly-decided) Roe. It's also a solution that partially solves the problem of "litmus testing" for Supreme Court candidates.

And it's a solution that ends the practice of judges turning court cases into nondemocratic, summary legislative decrees. On a long enough timeline, that practice is terrible for everyone.

Indeed, the notion that our rights are "granted" to us by the Constitution is historical nonsense, recalling the old royal charters whereby the Throne indulged its subjects by granting various special priveleges which could also be taken away on a whim.

An odd comparison considering the Bill of Rights is a document designed to prevent that very thing from occurring.

Isn't your idea that our "rights" are granted by a handful of unelected, unaccountable, vaccilating, black-robe-wearing Seniors more consistent with this "Royal Fiat" view than my belief that our rights are guaranteed (not granted) by a mostly-static document (dedicated to equal protection and limiting the scope of the overarching state) that Father Time has proven to be a pretty good thing?

Posted by Steve W | May 14, 2007 3:47 PM