« Kareem Fires Back | Main | Anne Frank Tree » Roe Anniversary Roe Blogging22 Jan 2008 09:36 pm I wouldn't say I agree with him in every last detail, but I would recommend Scott Lemieux's three part series of posts arguing that Roe v. Wade was correctly decided as well as his American Prospect article arguing against those who think it would somehow be no big deal were Roe overturned. Jeffrey Rosen made a rather different argument in the June 2006 Atlantic.
Comments (29)
Scott Lemieux's posts are excellent; I enjoyed them when he put them up in 2005. I should add a couple of things: 1. His isn't the only way to justify Roe. I think that the pregnancy discrimination cases were wrongly decided and that Roe follows on a straight equal protection analysis, in that abortion restrictions burden one gender only with the responsibility to protect fetal life. If I were deciding Roe, that's the opinion I would write. 2. Lemieux is very clear-- as he should be-- that there are reasonable arguments against Roe as well. Thus, your earlier post where you criticized people for arguing that Roe is legally dodgy is not consistent with Lemieux's approach. Lemieux obviously leaves room for critics of Roe. 
I think that the pregnancy discrimination cases were wrongly decided and that Roe follows on a straight equal protection analysis, in that abortion restrictions burden one gender only with the responsibility to protect fetal life. I think the fault for that particular inequality lies with a power beyond the jurisdiction of our fine Constitution.
First, I'm defending the outcome of the case, as opposed to the craftsmanship of the majority opinion. Second, I'm not a legal formalist; I'm not claiming that Roe is "right" in the sense that no person could reasonably disagree. Like any constitutional issue of any interest, it's not "correct" in the sense of being unassailably true. My argument is that its outcome is plausible and carries any number of pragmatic benefits. Oh, there's a compelling opener.
Yeah, having read it, that was exactly what I feared. The Prospect article was "it is good that abortion is a constitutional right", and worked on those terms. The blog posts were "it is good that abortion is a constitutional right" stapled to "it is held that abortion is a constitutional right", masquerading as "it is true that abortion is a constitutional right". Less impressive.
Re: I think the fault for that particular inequality lies with a power beyond the jurisdiction of our fine Constitution. Exactly. I suppose Dilan thinks that in the name of some nebulous feminist ideal women should be allowed to kill their children. Take it up with nature, Dilan- or with God. It's sickening that you would think that the ability to give life is some kind of tragedy, or that you think that freedom and women's rights can justify killing children. whatever happened to the virtue of being subject to forces beyond our command?
justify killing children Apparently, you do not know the meaning of the word, "children." "it is held that abortion is a constitutional right", masquerading as "it is true that abortion is a constitutional right" Scott does a good job of demonstrating longstanding recognition of a right to reproductive autonomy, well before Roe. And if you think there is a difference between "it is held that abortion is a constitutional right", and "it is true that abortion is a constitutional right," you need to read this: http://www.constitution.org/lrev/owh/path_law.htm
Correctly decide, of course, is a different standard than analytically sound. Marbury v. Madison, for example, established a principle that is as well settled as any in American law. But Marshall's decision to address the merits of the case before resolving questions about the Court's jurisidiction, while perhaps politically brilliant, was without a doubt 'legally dodgy.' I understand that many people have difficulty making distinctions like this, though.
Taking his points one at a time: First, grounding Roe in some sort of deep Constitutional doctrine is tough when the pretense in Griswold (and I use the word pretense because the way the pretense is immediately discarded reveals that it wasn't serious) is in the deep and abiding respect for marriage. "We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects." They overruled the actual history of the Constitution based on an alleged respect for an institution far older, and then summarily dismiss the reasoning less than a year later by extending it without any reference to marriage. You can't extend something that is alleged to be grounded in the thousand year tradition of marriage to individuals without revisting the original basis of the case. But that is exactly what the Supreme Court did. To make it topical, it would be like having a first ruling which grounds the government's right to torture in the ticking bomb scenario as gravely understanding that the government has the right to protect its citizens from a clear and present danger of imminent harm. This has been the duty of all governments since well before the Constitution, and as such forms a key part of the pact between nation and citizen when extreme exigency is present because that extreme case brings the most basic compact between nation and citizen to the fore--ahead of subsidary process concerns. Next case they say "since we have shown that the government has the right to torture in order to protect citizens from harm, it can clearly do so when they have a rational expectation that some harm at some future time may be avoided. That is about as clear evidence as is possible for result-oriented jurisprudence without the judge merely writing "I ruled as I did, just because I say so". Scott writes, allegedly in support of Roe that: "But that isn't the end of the analysis. The reason for this is obvious: the potential argument that the fetus is human life that the state can protect, which goes beyond the consensual behavior of Griswold (or the severe invasion of Skinner.) Indeed, I would go so far as to say that if the argument that the fetus is a human life that must be protected is accepted, Roe is clearly wrong. If a state passed a law, based on a consensus view that the fetus was life and had to be protected, and was willing to enforce these laws equitably, as I judge I would uphold such a law as constitutional however much I disagreed with the underlying moral view. " That of course is inconsistent with Roe. Roe did not merely leave that question open so that legislatures could research the question of life's beginning and then mark from that point. The judges in Roe created of whole cloth a trimester system where they summarily decided, without bothering to ground it in science or in jurisprudence, that protectable interests *could not exist* prior to the beginning of the third trimester. For no apparent reason whatsoever, they decided that the state could only protect viable fetuses after that point. They made no allowance for increased technology, and they should not have been drawing such lines in the first place. The court is neither empowered to, nor has the capability to independently research such questions. That should have been left to the legislatures. Even if you agree with where they drew the line, they shouldn't have been the ones drawing it. His argument that the existence of a grey market makes enforcement of laws unconstitutional, is both novel and ridiculous unless you want to think that almost any law is unconstitutional. (Take almost any law whatsoever regulating doctors for example. There are certainly uneven applications of such regulations. That does not make regulating doctors unconstitutional. And no trying to get around it as less than a fundamental right--the doctor patient privilege has at least as valid a history as the 'right' to abort.) Scott writes: "To me, the key is the Carolene Products standard the Supreme Court has used to evaluate civil liberties claims for several decades: namely, the idea that the Supreme Court should be especially willing to protect groups excluded from the political process and correct cases where the democratic process malfunctions." This is compelling only if you believe that fetuses can't possibly have any rights whatsoever. Once you think they might it becomes rather obvious that never-voting fetuses might need the special protection he is talking about. If you start from the proposition that abortion is a fundamental right, you can justify Roe. But pretending that Roe is a logical progression of a defensible constitutional understanding is just garbage. You can like the result, but the process he outlined is fake.
"This is compelling only if you believe that fetuses can't possibly have any rights whatsoever." Of course I believe that fetuses have no rights. The reason? It's the unequivocally correct view on the issue, at least as a matter of law. No matter what Constitutional interpretive method you use, there is no *legal* (please note that this is distinct from moral or philosophical) basis for that result. I mean seriously, you can go down the list: Originalist? Given that abortions generally were legal (at least before quickening) at the time of drafting, it is almost inarguable that the framers would have believed that a fetus is not a person. Also consider that the number of representatives alotted to each state did not include fetuses (and as the 3/5 compromist showed, the framers were very keen on thinking about this issue). Textualist? It is hard to square the Fourth or Fifth Amendment with the concept that a fetus is a person -- after all, if you imprison a pregnant woman, you almost certainly are imprisoning the fetus without due process. "Living" Constitution? Although there is a vocal minority opposing the view, the general consensus seems to be that a fetus is not a person. Especially look to the fact that a mother generally is not prohibited from doing certain harmful things to the fetus (smoke, drink, eat harmful foods, etc.). Though this would, of course, provide an opportunity for pro-lifers in the future, if it became clear that society had come to the belief that a fetus is a person. Good luck on that one. Really, the thought that a fetus would be considered a person under the Constitution is ludicrous. I understand that if the fundies were creating their own new nation, they would work that concept into their laws. But -- and this is what they cannot accept -- THAT IS NOT THE NATION THAT WE LIVE IN. There is a right answer to the question of "are fetuses 'persons' under the US Constitution?" It's just an answer that certain segments of the population don't like.
Sorry, brain jumped ahead a bit. Forgot to state from the outset that fetuses cannot have legal rights because they are not "persons" under the Constitution. That is the concept that is unequivocally true as a matter of legal interpretation.
Sebastian, I don't understand why you think taking a rhetorical claim out of the Griswold decision invalidates Scott's claim that the real basis for the Court's decision was reproductive autonomy. The difference with the ticking time bomb case is that reproductive autonomy is perfectly good grounds for the previous cases and Roe v Wade. It stands as a justification on its own, independent of stare decisis, which is what you're confusing in your example. Additionally, the Court frequently draws lines that should be drawn by legislatures in cases where it is clear that the legislature has failed to draw constitutional lines. Separate is inherently inequal is a great example. That decision resulted from the manifestly unfair conditions in the South. Scott's argument is that abortion was a similar situation. I also think Scott concedes far too much with his protection of the fetus argument. I happen to believe that the right to reproductive autonomy of the woman is far more important than the right to life of the fetus, even if it is said to be a person. Furthermore, even if the state claims that the fetus is a person, this is clearly not constitutionally true as Joe highlights. Thus, I don't see any reason to accept a law that invents one constitutional privilege (the personhood of the fetus) to justify the abrogation of a real consitutional right (reproductive autonomy).
I quote a previous poster: "The only problem with Roe is that it didn't go far enough in protecting abortion rights. The stuff about viability and the state's interest in "potential life" may eventually be its undoing." Quite true. If the Supreme Court majority really meant what they've been saying post-Roe, they'd have removed the heavy and obviously unconstitutional sexual bias from their current legal rulings. As it stands now, women get nine months, post pregnancy to opt out of motherhood. Men get no such option, meaning that a one-night-stand with a near stranger can oblige them to 18+ years of child support. That can mean a man will never have the opportunity, for instance, of escaping a dead-end job by furthering his education. That's "cruel and unjust punishment" inflicted solely upon men. What's permitted the goose must be permitted for the gander. Some have suggested that the man (we dare not call him a father during pregnancy) should have the same nine months to consult with a lawyer and opt out of the obligations of fatherhood. We could, if we wanted, mimic Roe and make the process more expensive later in the pregnancy. But that's the least the Court could do, assuming, of course, that it actually believes what its saying. But what the Court must actually do is something far more. No man could be certain, having filed the proper papers to opt out of fatherhood, that some political changes, probably inspired by those evil Republicans, might again oblige him to pay child support. For such men, their only safety, their only protection from "forced fatherhood." lies is a dead baby. No child, no child support. In short, Roe isn't safe, logically and constitutionally, until the fetus isn't considered legally human until some months-long period after birth, a period sufficient for the male to decide if he wants to be a father and, if not, for him to "abort" the thing, irrespective of the mother (oops woman's) wishes. After all, the courts have ruled that the father (oops man) can't stop an abortion. Why should the woman be able to stop infanticide? If personhood is arbitrary, imposed by the whims of a Supreme Court majority, then it's just as logical to extend it beyond birth when, no longer being a part of the woman's body, what happens to it is no longer her business. Again, what's true for the goose must be true for the gander. And of course none of this is going to happen because legalized abortion has absolutely nothing to do with any alleged rights of women. Read the first paragraph of Roe. It's about eugenics and "racial overtones." It was written during a manufactured hysteria about a population explosion when birthrates for whites were plummeting much faster than those for blacks. One very liberal English professor explained to me why abortion was legalized when he pointed to a young black man nearby and whispered, "That's why we have abortion." From Thomas Malthus on, the logic of the left has been driven by one grim reality. If everyone is well-provided for, irrespective of their ability, then those with the least abilities (formerly known as the unfit) will overwhelm the more enlightened, liberal populace, who--as we all can see--don't want to have many kids. As a result, the necessity for the State to manipulate in various ways who has children is one of the covert dogmas of modern liberalism and it's been a core dogma of feminism at least since Charlotte Perkins Gilman in the 1910s. It's what drove Margaret Sanger, with zealous liberal support, to promote birth control and found what is today Planned Parenthood. In a book I edited, The Pivot of Civilization in Historical Perspective, I quote extensively from original sources to demonstrate why the left not only does but must have a State that uses every means in its power to restrict birthrates in socially troublesome groups, from the poor of all races to sexually active teens. Read it if you want your eyes opened. But please don't trouble yourself with trying to clean up Roe and make it ethical and enlightened. It isn't because it was never intended to be. --Michael W. Perry, Seattle
"Furthermore, even if the state claims that the fetus is a person, this is clearly not constitutionally true...." This is a point that should be developed further. Both sides of the debate tend to frame the issue as a balancing of the fetuses rights with that of the woman's. It seems pretty clear to me that this is entirely the wrong way to approach the problem, because (as noted above), the fetus has no constitutionally-protected rights (because it is not a person under the US Constitution). If there is any balancing, it is between the woman's "privacy" (I don't like that word, but we'll stick with the Griswold frame) rights with the state's rights to regulate "stuff" that interferes with recognized constitutionally-protected rights. If a state were to say that a fetus is a "person," this would be no different than saying that paper is a "person," and thus, the freedom of the press can be abridged because publishing a newspaper infringes on another "person's" rights. The state is free to say this, but when a court considers the issue, the state's determination will carry no weight.
I think the fault for that particular inequality lies with a power beyond the jurisdiction of our fine Constitution. No way. Evolution (the higher power you speak of) may have placed wombs in women, but that says nothing about whether the burden of UNWANTED pregnancies should be forced upon women and not men. Exactly. I suppose Dilan thinks that in the name of some nebulous feminist ideal women should be allowed to kill their children. Take it up with nature, Dilan- or with God. Same answer. Nature says nothing about carrying unwanted pregnancies to term. Only that if a couple or woman WANTS to carry a pregnancy, it is the mother who is going to carry it (until we invent an artificial womb). The reasons you guys want to make women carry fetuses they DON'T want to carry has to do with sexism, not anything dictated by evolution (or, of course, Hector's self-important delusions of grandeur about "God").
As it stands now, women get nine months, post pregnancy to opt out of motherhood. Men get no such option, meaning that a one-night-stand with a near stranger can oblige them to 18+ years of child support. That can mean a man will never have the opportunity, for instance, of escaping a dead-end job by furthering his education. That's "cruel and unjust punishment" inflicted solely upon men. Mike, they aren't similarly situated. If the man carried the fetus, he'd have the right to determine what to do with it. But he doesn't, so he doesn't. I am not cavalier about this-- it is obviously not completely fair that a man can be on the hook for 18 years of child support based on a one-night stand, whereas a woman will not be. But there is no alternative to this-- it is the fairest possible rule, because it is better than either of the two alternatives: (1) forcing women to carry unwanted fetuses to term, or (2) allowing men out of their obligation to support their born children. Roe is the best of the 3 available choices.
"(2) allowing men out of their obligation to support their born children." Yikes. Rephrase that please to "allowing children to become destitute because the person that put them in that position didn't intend to do so." Child support is not about punishing inadvertant fathers. It's about making sure that we minimize the number of poor children in our society. It's about looking at two individuals and deciding that it is more equitable to transfer assets to the child than not. I look at it like this -- people unintentionally do things all the time that cause damage to another person (example: changing lanes without looking and causing an accident). A man who inadvertantly fathers a child has done precisely this (the damage being to the child who, absent reimbursement, will be forced to grow up without resources). Just as we require negligent car drivers to make the victims of their accidents whole, we can make "negligent" fathers do so to their unintentional children.
As it stands now, women get nine months, post pregnancy to opt out of motherhood. No, "post pregnancy" you're pretty much stuck with it.
Joe I think you are misunderstanding something and it is sending you off on a tangent. If a legislature wanted to clarify that fetuses are protectable persons for various reasons, there is nothing in the Constitution that would prevent that. The Constitution neither mandates nor prevents a legislature from doing that. Are you going to make an ironic argument that language and societal understanding cannot evolve in order to contradict that? Roe doesn't allow the legislature to do so because the judges made up from thin air a period beyond which the court banned the legislature from looking into the matter. The rest of your comments are based on this misunderstanding, so I can't really respond to them.
"If a legislature wanted to clarify that fetuses are protectable persons for various reasons, there is nothing in the Constitution that would prevent that. The Constitution neither mandates nor prevents a legislature from doing that." Did you not read my comment? This is flatly incorrect. The Constitution (really, the Bill of Rights and the Civil War Amendments, but that's a quibble) grans certain individual rights to "persons" (i.e., if you are not a "person," you *cannot* have these rights). This term *must* has an objective -- though potentially shifting -- meaning. Otherwise, the federal government (prior to the 14th Amendment) or state governments (after the 14th Amendment) could deprive certain individuals of rights simply as defining them as non-"persons." Or, equally troubling, they could define other entities (not contemplated as "persons" under any legitimate constitutional interpretation method) to set up a conflict in rights that is amenable to being resolved only by abridging the rights of one of the "persons" (my example was defining paper to be a person in order to curtail otherwise protected newspaper publishing). A state can, of course, say that anything they want is a "person." But doing so would not give whatever they so designated rights that are unique to "persons" under the federal constitution. Legislatively defining a dog to be a "person" does not give it the federal constitutional right to due process. Look, either "person" has an objective meaning under the constitution that can be ascertained from the document itself, or it doesn't. If it is the former, I think it is unimpeachable that fetuses are not "persons," no matter what interpretive method you use. If it is the latter (i.e., a "person" is whatever a particular state legislature says it is), then the individual protections in the Constitution essentially become unworkable. Once again, I know you fervently wish you lived in a nation that had been set up along the principle that a fetus is a person. When you start your own country, you can make it so. BUT YOU DO NTO LIVE IN THAT COUNTRY NOW. No amount of wishing will change things. "Are you going to make an ironic argument that language and societal understanding cannot evolve in order to contradict that?" I'm a bit unclear why the argument is "ironic." I don't think you have the slightest idea what constitutional interpretive method I generally prefer. Fortunately, on the question of "is a fetus a person," it doesn't matter. All legitimate interpretive methods point to the precise same result -- a fetus was not considered a person at the time of drafting, considering a fetus as a person would effectively nullify several other important constitutional provisions, and current norms tend to point away from that result (again, call me when pregnant women are legally forbidden from smoking, drinking, eating sushi, or skipping OB/GYN visits).
"This is flatly incorrect. The Constitution (really, the Bill of Rights and the Civil War Amendments, but that's a quibble) grans certain individual rights to "persons" (i.e., if you are not a "person," you *cannot* have these rights). This term *must* has an objective -- though potentially shifting -- meaning. Otherwise, the federal government (prior to the 14th Amendment) or state governments (after the 14th Amendment) could deprive certain individuals of rights simply as defining them as non-"persons."" I'm afraid you're mistaken. The definition of 'person' and 'citizen' has been expanded a number of times. See black people, Indians, naturalized citizens, women...
"I'm afraid you're mistaken. The definition of 'person' and 'citizen' has been expanded a number of times. See black people, Indians, naturalized citizens, women..." Wow. This is shockingly disingenious. Yes, the definition of "citizen" has been expanded significantly -- BY A CONSTITUTIONAL AMENDMENT (I will concede that the interpretaion of "and subject to the jurisdiction thereof" has not been perfectly rigid, but the distinction between a fluid interpretation of this phrase and the concrete term "person" should be readily apparent). As for the definition of "person," I'm unaware of any authority suggesting that the definition has been significantly expanded or reduced. Indeed, the text of the Constitution itself seems to imply that blacks (slaves and freemen, women and Indians) were all considered "persons" from the founding. See, e.g., U.S. Const., Art. I, sec. 2 ("Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."). Again, this is not really a matter of debate. There is a right answer. I'm sorry you don't like it.
Dilan, No, I think it's perfectly fair to require a man to care for any children that he may father, regardless of whether he 'wanted' to become a father or not. Your logic is disgusting and horribly misogynistic, that would allow a man to choose not to care for a child that he creates just because he didn't 'want' the baby. But, I suppose it's a natural outgrowth of your advocacy of abortion rights, that act that more than any other violently and brutally negates a woman's very nature. Your belief in 'freedom' as the highest good- and in this case, it appears that you mean the freedom to climb the capitalist ladder of success and maximize one's number of casual, commitment-free orgasms along the way- leads to an arid, sterile, and loveless world. I wish that we placed less emphasis on 'choosing' and more emphasis on the idea of _being chosen_ by fate, God, what have you, for a particular destiny. There is more virtue and glory in _being chosen_ than in choosing. To have an unwanted pregnancy is a tragedy, without doubt. But it is only tragedy and suffering that make virtue and heroism possible. All pregnant women- and their husbands/boyfriends/whoever- should have help of course, lots and lots of it. As a man of the Left, I believe that society should devote its collective resource to ensuring that all pregnant women have what they need to thrive and for their baby to thrive, and that women do not have to lose their job, their home, or their educational opportunities to do so. I look forward to a society where birth control and sexual responsibility have minimized the number or abortions, and where every pregnant woman is supported financially, socially and emotionally by the collective hand of society. But in those cases where God, nature, fate, what have you does choose to send an unplanned child into the world, it is the duty of society, of the father, and of the pregnant mother to ensure that that baby is protected, nourished, and well taken care of- and above all, not sacrificed on the altar of freedom, money and orgasms.
I don't really get why there's still argument over Roe. All the most significant aspects of Roe, most notably the bizarre trimester framework, were overturned by Sandra Day O'Connor in Planned Parenthood v. Casey. Roe v. Wade is, IMHO, no longer good law.
No, I think it's perfectly fair to require a man to care for any children that he may father, regardless of whether he 'wanted' to become a father or not. Your logic is disgusting and horribly misogynistic, that would allow a man to choose not to care for a child that he creates just because he didn't 'want' the baby. Hector, reread my 1:22 pm. I said the opposite of what you say I said.
Re: I am not cavalier about this-- it is obviously not completely fair that a man can be on the hook for 18 years of child support based on a one-night stand, whereas a woman will not be. In other words, you agree that a man should have to pay child support, but only because you think it's the best of a bad set of alternatives- you don't think it's completely fair. I on the other hand think it's completely fair and I'm disgusted that anyone would think likewise. Particularly someone who calls himself a 'feminist.' But then agai, _your_ brand of feminism was never really about benefiting women, was it?
In other words, you agree that a man should have to pay child support, but only because you think it's the best of a bad set of alternatives- you don't think it's completely fair. I on the other hand think it's completely fair and I'm disgusted that anyone would think likewise. Hector, doesn't your religion have some sort of commandment or doctrine against being a jerk? Yare taking my statement way out of context. What I said is that there is some unfairness in the fact that a man may be stuck with the responsibility of child support in a situation where a woman could choose to abort. But it is the least unfair of the three possible regimes. Really, if your religious beliefs are correct, you need to repent for this one.
Well, OK, Dilan. On closer examination, I agree that I did take your statement out of context. i didn't agree with your tone, but it's certainly true that you did not endorse the right of men to not pay child support. I have heard people endorse that point of view though, and I loathe it.
Well, OK, Dilan. On closer examination, I agree that I did take your statement out of context. i didn't agree with your tone, but it's certainly true that you did not endorse the right of men to not pay child support. Apology accepted. I withdraw my comment that you were being a jerk.
Comments closed February 05, 2008. |
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Heads in the Sand
The only problem with Roe is that it didn't go far enough in protecting abortion rights. The stuff about viability and the state's interest in "potential life" may eventually be its undoing.
Posted by Jason C. | January 23, 2008 12:11 AM