Mrs. X's Story

From The Atlantic's incomparable archives and in honor of the 35th anniversary of Roe v. Wade let me give you August of 1965's "One Woman's Abortion" by the mysterious Mrs. X:

I set out recently to find an abortionist in the large Eastern city where I live. My husband and I are in our mid-forties and have three children. When I discovered that I was pregnant for the fourth time, my husband and I considered the situation as honestly as we could. We both admitted that we lacked the physical resources to face 2 A.M. feedings, diapers, and the seemingly endless cycle of measles, mumps, and concussions of another child. Years of keeping a wary eye on expenditures (a new suit for my husband every two years and one for me every five) had allowed us to set up a fund which we felt would enable the children to attend reasonably good colleges away from home if some financial assistance in the form of grants or scholarships could be obtained. Since my husband's income has reached its zenith, it was plain that one of the four would have to forgo all or part of a chance at higher education. The part-time secretarial work which I had been doing for some years to augment our income would have to stop since the revenue it produces would not cover baby-sitting fees. We have no rich uncles likely to make our children their beneficiaries. We have also had sufficient experience living to acknowledge that while the Lord will sometimes provide, He may be busy looking after somebody else when you need Him most.

For further discussion, let me just note that I think the effort to convince even pro-choice people that there's something legally dodgy about Roe ought to be resisted.

Comments

and the seemingly endless cycle of measles, mumps, and concussions of another child.

Concussions?

Posted by blah | January 22, 2008 3:05 PM

While I sympathize with Mrs. X's story, I still believe we should have an 8th trimester cutoff on abortions.

Posted by Petey | January 22, 2008 3:09 PM

What constitutes 'legally dodgy'? Maybe a decision that overturns the laws of 46 states, on the basis of a resdiscovery of a discarded doctrine of 'substantive due process' that is in line wiht the justices policy preferences? What is legally dodgy if Roe v. Wade is not?

Posted by John | January 22, 2008 3:12 PM

What constitutes 'legally dodgy'? Maybe a decision that overturns the laws of 46 states, on the basis of a resdiscovery of a discarded doctrine of 'substantive due process' that is in line wiht the justices policy preferences? What is legally dodgy if Roe v. Wade is not?

Posted by John | January 22, 2008 3:13 PM

Apologies for the multiple posts - server problems I guess.

Posted by John | January 22, 2008 3:14 PM

Years of keeping a wary eye on expenditures (a new suit for my husband every two years and one for me every five)

I doubt pro-life people will be terribly impressed by the idea of trading off children versus suits.

I don't know much about the legal arguments of Roe vs. Wade. But, at the risk of sounding like a tool of the right wing, I do think one should separate a dispassionate analysis of the legal issues from the policy outcomes one desires.

Posted by Jim W | January 22, 2008 3:14 PM

8th trimester? Wow after 24 months of pregnancy I think that would be a grievous offense as well.

Posted by Steady | January 22, 2008 3:15 PM

For further discussion, let me just note that I think the effort to convince even pro-choice people that there's something legally dodgy about Roe ought to be resisted.

well that's an interesting comment to just throw out there with no further elaboration.

I'm pro-choice but my legal education leaves me suspect of Roe's reasoning. Care to expound a little more on this Matt?

Posted by Steve Balboni | January 22, 2008 3:18 PM

"8th trimester?"

Yup. I'm old fashioned. Once the kid reaches 2 years old, I think you're morally bound to keep it, no matter what.

Posted by Petey | January 22, 2008 3:18 PM

Does Matt have any familiarity with Constitutional Law? I suppose liberals should resist efforts to argue Roe v. Wade as legally questionable; but in terms of its reasoning its one of the weakest decisions available. That said the fact that liberal Con Law experts felt the need to put together an entire volume of essays about what the decision should have said, but didn't at least argues the decision is not a model of legal reasoning... http://www.amazon.com/What-Wade-Should-Have-Said/dp/0814799183

Even Jim Ryan, no friend to conservative legal theory, has said the reasoning in the Roe opinion is an embarrassment to the Con Law profession.

Posted by jhb | January 22, 2008 3:21 PM

I don't think even those who support the result in Roe generally try to justify the decision as written in legal terms; Blackmun was a poor draftsman, he was buffeted by cross-currents of opinion within the Court, and the opinion that resulted from these pressures was neither doctrinally justifiable nor particularly compelling in policy terms. What abortion rights proponents tend to do is defend Roe as it ought to have been written, based on some sort of Equal Protection rationale, or perhaps a more textually-anchored substantive due process analysis (which is almost, but not quite, a contradiction in terms). The decision to follow the Griswold notion of penumbras and emanations precluded much serious scholarly support for Roe, even among pro-choice legal scholars, of whom there are many.

Posted by Anon8 | January 22, 2008 3:23 PM

I watched "Love with the Proper Stranger" the other night. It's from 1963 with Natalie Wood and Steve McQueen starring as an unmarried couple dealing with an unwanted & unplanned pregnancy. Their travails in finding and paying for an abortionist are difficult to view. Their plight is cast as one of agonizing drama, fraught with genuine danger and impending trauma. To think this is what some want us to go back to is sickening.

Posted by steve duncan | January 22, 2008 3:27 PM

blah: I think "concussion" in this context may be an archaic term for "cough."

Posted by alkali | January 22, 2008 3:29 PM

What constitutes 'legally dodgy'? Maybe a decision that overturns the laws of 46 states, on the basis of a resdiscovery of a discarded doctrine of 'substantive due process' that is in line wiht the justices policy preferences? What is legally dodgy if Roe v. Wade is not?

Does Matt have any familiarity with Constitutional Law? I suppose liberals should resist efforts to argue Roe v. Wade as legally questionable; but in terms of its reasoning its one of the weakest decisions available.

Well, it isn't legally dodgy because it overturns lots of state laws. Lots of federal constitutional rights overturn a bunch of state laws. As the old saying goes, if you had a referendum on the bill of rights, it would fail.

Roe is also far from one of the weakest-reasoned decisions available. It was a relatively logical extension of Eisenstadt v. Baird and Griswold v. Connecticut, and the conceptual framework dates back to Pierce v. Society of Sisters 80 years ago. Something like Bush v. Gore is much more poorly reasoned, for instance.

BUT, Matt is wrong; the issue of whether Roe should be criticized depends on whether one thinks that it was rightly decided or not. The fact is, Roe is based on a substantive due process theory that one can easily argue is not really in the Constitution, and there is plenty of evidence that the framers of the Constitution didn't think they were saying anything either way about abortion by enacting the relevant provisions. There are, of course, other theories that justify Roe; I think there is a very strong equal protection argument, for instance.

But the point is, if there are intellectually defensible criticisms of Roe (and there are), you can't really fairly say that it is out of bounds to criticize the decision.

Posted by Dilan Esper | January 22, 2008 3:29 PM

I don't get the talk that Roe was legally dubious. I've been told that it was poorly written, but not necessarily the wrong decision. Plus the fact that it hasn't been overturned despite that fact that most of the Supreme Court has been appointed by the party that thinks abortion should be outlawed. I would think that this would end the "Roe was decided wrongly, but I agree with its merits" crowd.

Posted by Cols714 | January 22, 2008 3:29 PM

Matt,

That may be one of the most ignorant things you've ever written. There are an abundant number of legal scholars who favor the result in Roe, but there are hardly any who would not admit that it is at best suspect legally. To read Roe, is to lose respect for it; have you read it?

Posted by John | January 22, 2008 3:31 PM

Matt tells everyone not to discuss Roe v. Wade, so of course almost everyone discusses Roe v. Wade. Hah!

Posted by blah | January 22, 2008 3:36 PM

Dilan,

I have to insist that overturning the laws of 46 states by resurrecting substantive due process is the definition legally suspect. If you can name another instance where the laws of 46 states have been overturned based on a Supreme Court ruling, I'd be interested to hear. At the very least, it doesn't 'happen all the time'.

Posted by John | January 22, 2008 3:38 PM

Meh. This whole "Roe was terrible con-law" stuff isn't that impressive. Its almost always over-the-top, "weakest decision ever", kind of criticism. Maybe you didn't like the reasoning. Maybe penumbras and emanations aren't your thing. But I like the idea that certain aspects of our lives should not be subject to government regulation. And that's about what Roe v Wade amounts to. Southern whites were not too thrilled with the courts' sudden realization that separate was not equal either. Sometimes its appropriate for the court to realize, hey, we have been doing it wrong up until now, but we can change.

Posted by mpowell | January 22, 2008 3:39 PM

Stuff like this amuses me. It almost seems quaint already. There are too many people on this planet, including in the US. Population control is going to be widespread across the globe in 10-20 years. There won't even be a debate about abortion by then. The morality of the issue as it is currently framed won't even be acknowledged due to the near-universal recognition that people just can't have offspring because they want to. As one person remarked, it will certainly be the greatest threat the Catholic Church has ever faced. 30 years from now people will remember that there was a time when abortion was debated and it will seem as foreign as hiding-under-the-desk nuclear drills seem now.

Anyone who claims to be serious about climate change who doesn't want to address global population is a charlatan. Sure, the US could drastically cut its fossil fuel consumption, but if even a fraction of the population of the rest of world, or just China an India, were to approach the US standard of living, it would more than negate any gains made by a greener US. If everyone around the world lived at the US standard, five earths would be required to supply all the natural resources consumed. Population is the issue no one is willing to address. This talk of abortion has some pertinence in the here and now, but it'll be moot soon enough.

Posted by blah | January 22, 2008 3:41 PM

concussions were what lots of us got when we fell off jungle gyms onto hard asphalt or from our bike and our unhelmeted heads slapped against curbs. they were fun. as was going to emergency rooms and being treated immediately.

Posted by deeluzon | January 22, 2008 3:42 PM

Griswold only suppressed outliers - I think there were only two states that had similar laws; one can argue that contraception and abortion constitute similar rights. However, if that were true, remains to be explained why 46 states had restrictions on one rather than the other. Either way Roe was a dramatic expansion; from your perspective maybe a 'relatively logical extension', but it certainly seems like a dramatic extension of substantive due process from the emanations and penumbras of Griswold to me.

Posted by John | January 22, 2008 3:43 PM

The 1960s was also long before the age of mandatory child safety seats in cars.

Posted by Dragonfly | January 22, 2008 3:46 PM

Roe is based on a substantive due process theory that one can easily argue is not really in the Constitution if if one is a rightwing nutjob.

Could Utah declare Mormonism its official religion and require everone to join on pain of death? Could California ban newspapers that criticize the governor? Could Mississippi convict people of crimes on suspicion rather than proof beyond a reasonable doubt? That's the kind of constitution you think we ought to have, if you think substantive due process ought to be disregarded as a 140-year-old judicial abberation.

What the heck do you think the 14th Amendment means, anyway? Do you think it means anything at all?

[exit, muttering darkly about flat-earthers . . .]

Posted by rea | January 22, 2008 3:48 PM

Apologies for the multiple posts - server problems I guess.

PEBCAK.

Posted by Jeffrey | January 22, 2008 3:53 PM

Could Utah declare Mormonism its official religion and require everone to join on pain of death? Could California ban newspapers that criticize the governor? Could Mississippi convict people of crimes on suspicion rather than proof beyond a reasonable doubt? That's the kind of constitution you think we ought to have, if you think substantive due process ought to be disregarded as a 140-year-old judicial abberation.

Two points: first, the fact that incorporation has proceeded along substantive due process lines hardly means it could not be reformulated. In fact, many scholars have preferred the Privileges or Immunities Clause of the Fourteenth Amendment to its Due Process Clause as a more textually justifiable hook to hang incorporation on, notwithstanding the Supreme Court's gutting of the Privileges or Immunities Clause in the Slaughterhouse Cases. In practical terms, this argument is a dead letter, but so long as we're operating at the level of doctrinal theory, there's no particular reason incorporation depends on substantive due process.

Second, the post you quoted refers to a substantive due process theory; implying, I think correctly, that there is more than one. The frequently-invoked test for determining the content of substantive due process is whether an asserted liberty interest is based on a "principle of justice so rooted in the traditions and conscience of our people to be ranked as fundamental." By that standard, any right enshrined in the Bill of Rights bears a prohibitively strong presumption of being fundamental enough to merit inclusion in substantive due process and thus application to the states through incorporation; other rights with less textual basis must justify themselves in historical terms, which Justice Blackmun conspicuously failed to do on behalf of abortion rights in Roe.

Posted by Anon8 | January 22, 2008 4:13 PM

rea,

Are you being satirical? If you know anything about con law history (which is doubtful), you know that substantive due process has not been around for 140 years. It was adopted for a time in the early 20th century to protect economic interests, then rejected by the Court in the early 1940's. Then it was resurrected for abortion...

Posted by John | January 22, 2008 4:16 PM

John, I litigate conlaw issues in the appellate courts, among other things, for a living, so I do know something about it. I've been doing that for 28 years, now. Substantive due process dates back to the Reconstruction era.

Anon8, I have no interest whatever in going back to the Slaughterhouse Cases and reinventing 14th Amendment jurisprudence from square one. Precedent means something. You might as well propose building a better foundation for the Empire State Building.

The Constitution does not merely protect a few islands of rights in a sea of government powers--instead, it establishes a few islands of governmental powers in a sea of rights. Those hostile to Roe claim that everything which is not explicted permitted to individuals by the Constitution can be prohibited. Hitler's constitution may have read that way; ours does not.

Posted by rea | January 22, 2008 4:30 PM

This is the point where everyone has a lawyer friend who has told them that Roe was wrongly decided. It seems like it is the cool thing to say. "I agree abortion should be legal, but Roe was a terribly reasoned decision".

Posted by Cols714 | January 22, 2008 4:35 PM

John, do you believe Griswold is legally invalid as well? If not, and if you have read both Griswold and Roe, I'd be interested to read your principled legal distinction between the two. (Good luck.) And no, the fact that one involved a more commonly enacted state law than the other does not cut it as a legal distinction (that is mere bean-counting, not legal argument).

Posted by Gator90 | January 22, 2008 4:41 PM

Cols714, I thought the same thing until I went to law school and read not only Roe but all of the previous decisions, going back many decades, that Roe relied on. When they are all read together, they form a coherent, internally consistent body of constitutional law. Given the interpretive nature of the subject matter, it is hard to say that Roe is "correct" in the concrete sense that 1 plus 1 equaling 2 is correct, but I have never encountered a persuasive argument that it was poorly reasoned or obviously wrong.

Posted by Gator90 | January 22, 2008 4:48 PM

"The Constitution does not merely protect a few islands of rights in a sea of government powers--instead, it establishes a few islands of governmental powers in a sea of rights."

That is certainly true of the federal government. I'm not sure it is true of the states. Certainly, the traditional view would be that state governments have broad unenumerated police powers except where expressly limited by the federal constitution--mostly by the 14th amendment or the supremacy clause.

Posted by Leo | January 22, 2008 5:12 PM

I think you misunderstood, I meant that the cool thing is to say, "I agree abortion should be legal, but Roe was a terribly reasoned decision". I don't ever say that.

I don't really have an opinion, I think abortion being legal is the best outcome. I'm not a lawyer, but the fact that it has been upheld by alot of judges who were placed on the bench by the party who wants it to be illegal makes me feel that Roe isn't the poor decision that some people make it out to be.

Posted by Cols714 | January 22, 2008 5:15 PM

Blah,

You raise some good points regarding population. Fifteen years ago, your arguments might have more persuasive (at least to someone who doesn't believe that there is anything _in principle_ wrong with abortion). It presented many people with a harsh dilemma reminiscent of that faced by the Tikopians. However, I believe that your argument is less convincing today. We know, now, what couldn't have been predicted twenty or even ten years ago- that with economic development, population growth rates in most of the world would fall to at or below the replacement level. And not just in the developed world either, but in lots of developing countries as well.

We now know that legalized abortion is not, in fact, necessary for a country to reduce its birth rate. Most Latin American countries, which have strict anti-abortion laws, have birth rates only a little above replacement; Brazil is one of the most recent countries to reach replacement fertility, without having had to legalize abortion. Iran and Lebanon are both below replacement level, so are Poland, Portugal and Ireland, all of which have strictly anti-abortion legal regimes.

In quite a few European countries, the birth rate is low enough that even if all abortions were outlawed, their birth rate would still be below replacement level. Without immigration, the US population growth rate would be about zero, and illegalizing abortion would make little difference.

The experience of Latin America and of other countries in Europe and the Middle East shows that legal abortion is not needed as a tool of population control. There are better ways to achieve at or below replacement fertility, and thank God, they don't involve killing the unborn.

Posted by Hector | January 22, 2008 5:54 PM

Population control is a side issue at best. If you lean towards legalized abortion, the central issue is women having control over their own reproductive choices. If you lean against it, the central issue is the killing of (what you take to be) unborn persons.

Posted by er | January 22, 2008 6:01 PM

Well, no. I lean against abortion, and I would be against it even if there were no other means of population control. But the fact that abortion is not even a good or necessary means of population control means that _even_ those people who disagree with me that it's killing unborn persons should also agree that there is no reason for abortion to be legal.

Gator,

Does the fact that an unborn baby is different in kind from an unfertilized or un-implanted egg make any difference to you?

I think that contraception ought to be legal, for the most part, and therefore I approve of the result that Griswold reached, but I wish it had been done in some way other than to create a nebulous and meaningless 'right to privacy'.

Speaking as a good antiliberal, I also think that the debate over abortion demonstrates the ultimate hollowness of liberal government and Lockean-Jeffersoniean political theory in general, but that's just me.

Posted by Hector | January 22, 2008 6:19 PM

But the fact that abortion is not even a good or necessary means of population control means that _even_ those people who disagree with me that it's killing unborn persons should also agree that there is no reason for abortion to be legal.

No: those who disagree with you about the 'unborn persons' are not then limited to the 'population control' argument as the only possible justification for keeping abortion legal. The central justification and issue (from this perspective) is that of the woman's autonomy over her own body and reproductive decisions. Population control doesn't even enter into it.

Posted by er | January 22, 2008 6:26 PM

I have to insist that overturning the laws of 46 states by resurrecting substantive due process is the definition legally suspect.

John:

1. Roe didn't "resurrect" substantive due process. Substantive due process has been settled law for almost 200 years, and had been applied to issues relating to reproductive rights since at least the 1920's.

2. Overturning the laws of 46 states is meaningless. If Roe is a correct reading of the Constitution (which is the issue at play here), it wouldn't matter that it overturned laws in 50 states. That, after all, is what a constitutional right does; it supersedes state laws.

In contrast, if Roe is wrong, it would still be wrong even if it were just 1 or 2 states' laws that were overturned.

Babbling about the number of states involved is just a silly right wing talking point. It has no relevance to the interpretation of the constitutional provisions at issue.

Posted by Dilan Esper | January 22, 2008 6:41 PM

Griswold only suppressed outliers - I think there were only two states that had similar laws; one can argue that contraception and abortion constitute similar rights. However, if that were true, remains to be explained why 46 states had restrictions on one rather than the other.

How many states had racial segregation of one form or another before Brown?

How many states had nonproportional representation in the legislature before Reynolds v. Sims?

How many states gave Miranda warnings before Miranda?

How many states respected the exclusionary rule before Mapp v. Ohio?

How many states prohibited flag burning before Texas v. Johnson?

How many states had overbroad death penalty statutes before Furman v. Georgia?

"46 states" is a meaningless right wing talking point. Why don't you take it back to freerepublic and come back with an actual argument?

Posted by Dilan Esper | January 22, 2008 6:46 PM

Could Utah declare Mormonism its official religion and require everone to join on pain of death? Could California ban newspapers that criticize the governor? Could Mississippi convict people of crimes on suspicion rather than proof beyond a reasonable doubt? That's the kind of constitution you think we ought to have, if you think substantive due process ought to be disregarded as a 140-year-old judicial abberation.

What the heck do you think the 14th Amendment means, anyway? Do you think it means anything at all?

Um, rea, all those things are prohibited by express provisions of the Constitution, and the only issue is incorporation to the states. It is true that incorporation has been treated as an aspect of due process, but it is perfectly clear that the privileges and immunities clause of the 14th Amendment was intended to incorporate the bill of rights.

In any event, rea, what you are arguing is untenable. It is perfectly tenable to argue for the merits of substantive due process. But to claim that there is no reasonable counterargument is just silly-- and completely result-driven. Not everything you or I might like to be in the Constitution is in there. And there are legitimate criticisms that the concept of substantive due process doesn't contain any content, and therefore is just a black box for whatever a particular judge wants to put in there. There are also legitimate criticisms that "due process" is concerned with procedure, not substance.

There are also answers. But you are reducing a rich and textured constitutional argument that has been going on for a long time into a black and white issue, and it is not.

Posted by Dilan Esper | January 22, 2008 6:50 PM

And citing the overturning 46 laws would be a lot more impressive if the laws weren't sporadically and arbitrarily enforced.

Posted by Scott Lemieux | January 22, 2008 6:50 PM

Are you being satirical? If you know anything about con law history (which is doubtful), you know that substantive due process has not been around for 140 years. It was adopted for a time in the early 20th century to protect economic interests, then rejected by the Court in the early 1940's. Then it was resurrected for abortion...

John, substantive due process dates back to at least the 1850's.

And it wasn't "resurrected" for abortion. See above.

Posted by Dilan Esper | January 22, 2008 6:52 PM

Back 16 years ago or so when I was reading Roe, its predecessors and its progency, it seemed to me that the better doctrinal hook would have been the liberty interest in the 5th Amendment, to wit: ... nor shall any person ... be deprived of life, liberty or property without due process of law.

Now, if there is any government action, other than imprisonment, that is more restricting of a woman's liberty than preventing her from voluntarily terminating her pregnancy, I'd love to know what it is. And in the case of imprisonment, women get a trial first.

Also, back when both the Constitution and the 14th Amendment were adopted, the mortality rate from childbirth was not trivial. Preventing a woman from getting an abortion did, on a statistical basis, deprive a certain number of life, without due process.

Posted by Francis | January 22, 2008 7:34 PM

Roe didn't "resurrect" substantive due process. Substantive due process has been settled law for almost 200 years, and had been applied to issues relating to reproductive rights since at least the 1920's.

The problem for most Roe-as-good-law supporters is that stronger substantive due process claims unrelated to reproductive rights (for example substantive due process claims of the right to freely contract) have generally been rejected at the same time. Most liberals who endorse Roe also reject substantive due process in any other context than reproductive rights, where it would push back against their hypertrophied conception of the commerce clause.

There are coherent judicial views that would lead to a substantive due process line of reasoning that would get you to Roe. The problem is that it requires quite the mental gymnastics not to go through Lochner on the way. I have no problem with broad substantive due process, but I'm guessing most liberals would.

Posted by MattXIV | January 22, 2008 7:52 PM

"The Constitution does not merely protect a few islands of rights in a sea of government powers--instead, it establishes a few islands of governmental powers in a sea of rights. Those hostile to Roe claim that everything which is not explicted permitted to individuals by the Constitution can be prohibited. Hitler's constitution may have read that way; ours does not."

This is the comment I agree with most. To say that this statement applies only to the federal government ignores the Fourteenth Amendment. And yes, "privileges and immunities" makes a lot more sense than "substantive due process", so it's long past time the Slaughterhouse Cases were overruled.
Not that I expect it while Roberts rules the roost.

Posted by Henderstock | January 22, 2008 9:30 PM

For further discussion, let me just note that I think the effort to convince even pro-choice people that there's something legally dodgy about Roe ought to be resisted.

I get the strong feeling that you are basically arguing that "Roe gave me the result I wanted," so let's not concern ourselves with trivialities like whether it is good law."

Certainly one may rebut the idea that Roe was legally dodgy, but one must then be prepared to argue as to why it is legally sound. From your sudden inclusion of the idea that the idea that Roe is dodgy should be resisted seems to be based more on the idea of "the ends justify the means" rather than based on actual belief in the legal soundness of Roe.

Why don't you just say what you mean, Matt, that law means nothing to you and that you see it as just one tool to manipulate to get your preferred policies?

Posted by Glaivester | January 22, 2008 10:53 PM

"But I like the idea that certain aspects of our lives should not be subject to government regulation."

Darn right. Murder away.

Posted by David Andersen | January 22, 2008 11:44 PM

Um, rea, all those things are prohibited by express provisions of the Constitution, and the only issue is incorporation to the states. It is true that incorporation has been treated as an aspect of due process, but it is perfectly clear that the privileges and immunities clause of the 14th Amendment was intended to incorporate the bill of rights * * * [T]o claim that there is no reasonable counterargument is just silly . . .

If we were starting all over again in 1870 or so, you might have a point, it's 2008. It's not reasonable at this late date to start arguing that the privileges and immunities clause was intended to incorporate the bill of rights, thereby junking a couple of hundred volumes of Supreme Court reports. About 130 years of precedent tell me that substantive due process is real, that the privileges and immunities clause has very little to do with these issues, and that the Bill of Rights is not applicable in toto to the states.

Incremental development by precedent is how the law works. The 14th Amendment we have today is the one that courts have been construing all thee years, not the ideal one for which you would argue if you somehow could be beamed back to the Reconstruction

Posted by rea | January 23, 2008 12:34 AM

Henderstock:

How does the 14th amendment enumerate state powers? It seems pretty clearly to enumerate rights limiting state power. There is certainly nothing listing state government powers in the same way as the federal powers in enumerated in Article I.

I'm arguing with a metaphors here, but that doesn't seem consistent with the view that the constitution "establishes a few islands of governmental powers in a sea of rights."

More generally:

I'm someone who has given my opinion that Roe is "legally dodgy" in these comments on occasion, but that doesn't mean I think it should be overruled. The law is full of poorly drafted opinions and incoherent doctrine. Most of them stick around because they achieve the right result, basically, and would cause trouble if overturned. The right to privacy is somewhat troublesome from an analytic standpoint, but it works well enough for me.

Posted by Leo | January 23, 2008 12:41 AM

I think that contraception ought to be legal, for the most part

How generous.

Posted by tps12 | January 23, 2008 10:11 AM

The problem for most Roe-as-good-law supporters is that stronger substantive due process claims unrelated to reproductive rights (for example substantive due process claims of the right to freely contract) have generally been rejected at the same time. Most liberals who endorse Roe also reject substantive due process in any other context than reproductive rights, where it would push back against their hypertrophied conception of the commerce clause.

Matt, it is true that economic substantive due process has withered on the vine.

But there is plenty of non-reproductive substantive due process out there, such as:

1. The incoporation of the bill of rights.
2. The "shocks the conscience" standard for police abuse and torture.
3. The requirements that pre-trial detainees be treated humanely and not punished.

Those are just three I thought of off the top of my head. And I should note that as far as I know, even most critics of Roe support these applications of substantive due process.

The point is, this is a vibrant constitutional doctrine, not some one-off that protects abortion/contraception/sodomy and nothing else.

Posted by Dilan Esper | January 23, 2008 1:28 PM

Incremental development by precedent is how the law works. The 14th Amendment we have today is the one that courts have been construing all thee years, not the ideal one for which you would argue if you somehow could be beamed back to the Reconstruction

Rea, if you arguing this is the BEST interpretation, I agree. But it is certainly not the only reasonable interpretation, which is what I understand your position to be.

There have been plenty of areas where the Supreme Court has moved back to a more originalist conception of the Constitution. Two examples are the Confrontation Clause and the Jury Trial Clause. In both cases, criminal defendants have received additional protections because the Court has junked 100 years of precedent.

I wouldn't like to see the Court make the same move in Roe. But I don't see how one can argue that NO REASONABLE PERSON could possibly take the position that the Court should do so.

Posted by Dilan Esper | January 23, 2008 1:32 PM

I don't like to pontificate on the personal dilemmas of people I do not know, but I do find it rather sad that this Mrs X never apparently considered the possibility of giving up this unwanted child for adoption. Assuming we are not talking about pregnancies which endanger the mother, or about fetuses suffering congenital damage so that they may be unadoptable, I cannot understand why adoption is not a viable alternative to abortion in many individual cases.

Posted by Jonf | January 23, 2008 9:55 PM

Jonf, thank you for demonstrating the complete callousness of pro-lifers to the actual circumstances of women.

Do you have any idea how the adoption system worked in 1965? Do you have any idea how difficult a pregnancy was for women in those days, or how hard it is generally to have a pregnancy over 40, especially prior to recent medical advances?

The entire reason pro-lifers and pro-choicers cannot reach any common ground and these arguments continue in circles is because pro-lifers pretend that their position is simply a philosophical position about life and has nothing to do with how importantly one values the lives and life choices of women. You simply cannot blithely suggest adoption as if this is some easy option that renders abortion unnecessary.

Posted by Dilan Esper | January 24, 2008 1:04 AM