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On The Other Hand

Russel Arben Fox pushes forward with the anti-Roe logic I explored on Tapped. Before I become too closely identified with this piece of heterodoxy, let me note two big "on the other hands" that make me hesitant to endorse it. One is that if you believe, as I do, that a fetus does not have the moral standing of a person then it really is, just as current law states, an unjustifiable invasion of a woman's privacy to say that the state will regulate the manner in which she handles matters pertaining to the contents of her body. This minor question of what's actually right is very non-trivial. I don't think it's so non-trivial as to make the universal legality of abortion an issue worth sacrificing an infinite amount on other scores for, but it is important.

The other, even bigger, on the other hand is this. The logic of the anti-Roe view is either that there's no right to privacy, or else that for some reason the right to privacy does not extend to this particular matter. If you take the former approach than the universal applicability of a bunch of other rights will stand or fall with Roe. If you take the latter approach then the rest of the legal doctrine can stand, but the issue arises of why the right to privacy wouldn't extend to this matter. The answer would pretty much have to be that abortions aren't private conduct because the fetus has the rights of a person. This is the logic of virtually all the pro-life rhetoric one hears, and in the legal context it's the logic of the analogies drawn between Roe and the pre-Civil War slavery cases. This suggests that the upshot of an anti-Roe ruling wouldn't be for abortion to be decided by the congress and the state legislatures, but for a universal abortion ban to be put in place by judicial fiat.

Either of these outcomes would be bad, and they're both worth fighting against. My main point, though, is that there are plenty of other aspects of prevailing conservative jurisprudence that are objectionable. It would behoove the Democrats to, in any Supreme Court fight, set out the broad case across a range of issues and not stand on a narrow Roe litmus test.

November 15, 2004 | Permalink

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» Abortion and the SPCA from Jeff the Baptist
Matthew Yglesias is typing about abortion. Now this may surprise some of you, but I agree with him that a fetus shouldn't have the same legal standing as an infant. That doesn't mean I am pro-choice however... [Read More]

Tracked on Nov 16, 2004 12:22:13 AM

Comments

"My main point, though, is that there are plenty of other aspects of prevailing conservative jurisprudence that are objectionable."

Mine also. I'm not an anti-abortion absolutist, and my post isn't designed to assume one definitive metaphysical assumption about the fetus over another; the argument is, much more simply, that while the argument that legal abortion is necessary is generally a popular position, the present-day abortion regime (the legal decisions and social policies which support it) is not. Thus do conservative opponents of abortion get to paint themselves in populist colors, which they ought not be able to do. For progressives to moderate their position on abortion (which, functionally, means challenging the presumed untouchability of Roe) would be wise not only the sake of winning elections, but for the sake of advancing progressive causes in the economic sphere generally.

Posted by: Russell Arben Fox | Nov 15, 2004 6:43:12 PM

i had a few thoughts on roe myself today, though from a different angle. assuming roe gets overturned, it will be interesting to see if conservative judges would strike down a national abortion ban on Lopez/enumerated powers grounds.

and for what's it worth, i think the proper progressive position is to be anti-Roe, but pro-choice.

Posted by: publius | Nov 15, 2004 6:50:59 PM

This suggests that the upshot of an anti-Roe ruling wouldn't be for abortion to be decided by the congress and the state legislatures, but for a universal abortion ban to be put in place by judicial fiat.


It might suggest that homicide laws that exclude fetuses or statutes that subsidize abortion would be struck down as unconstitutionally discriminatory, and states forced to right non-discriminatory homicide statutes if they wanted any at all; certainly it does not mean that a prohibition on abortion would be (or even could be) handed down from the bench.

A particularly activist right-wing court might order states to write plans to protect fetuses and then monitor the enforcement of them (something remotely, but only remotely, similar to court-ordered integration in public schools), but its a different enough scenario that its hard to see that even being workable.

Posted by: cmdicely | Nov 15, 2004 6:51:10 PM

Yeah, the whole 'Constitution-in-Exile' movement is what really scares me - read Cass Sunstein's 'The Second Bill of Rights' or Jeffery Rosen's recent article in The New Republic and you'll se what I mean. Truly frightening turn-back-the-clock stuff.

Posted by: Kangaroo Jack | Nov 15, 2004 7:25:17 PM

The political dynamic of the abortion issue is that it tends to politically corrode whichever side advocates the status quo.

If abortion is legal, then preachers-on-the-make can use the notion of baby-killing to enrage their flocks and provide a good revenue stream for themselves. The GOP has used the issue for years to bring a dependable block of votes at little cost, not to mention driving fundraising.

Once abortion becomes illegal, however, we'll be faced with the concrete results of the policy. There'll be dead women from back-alley procedures, abandoned and abused children whose parent(s) didn't want them, and of course nasty problems for middle-class families with pregnant teen daughters who before could have had their situation dealt with quietly, safely and legally. At the same time, neither the GOP nor the fundamentalist wackos will have their bloody shirt to wave. Given that the majority of the electorate does want abortion to be available, banning it would steadily undermine those who made it illegal.

So cheer up, pro-choicers! We may lose Roe, but eventually we may get to see the inside of the White House again.

Posted by: jimBOB | Nov 15, 2004 7:27:24 PM

Foetus passports now!

Anyway, this month's Harper's is a must-read on this subject.

Posted by: ahem | Nov 15, 2004 7:36:06 PM

If you take the latter approach then the rest of the legal doctrine can stand, but the issue arises of why the right to privacy wouldn't extend to this matter. The answer would pretty much have to be that abortions aren't private conduct because the fetus has the rights of a person. This is the logic of virtually all the pro-life rhetoric one hears, and in the legal context it's the logic of the analogies drawn between Roe and the pre-Civil War slavery cases. This suggests that the upshot of an anti-Roe ruling wouldn't be for abortion to be decided by the congress and the state legislatures, but for a universal abortion ban to be put in place by judicial fiat.

No, the upshot would be that, on such purely philosophical/moral questions, the Constitution of the US is, rightly, silent, and that appropriate answers are best left to to legislative bodies, not judges.

It seems to me overwhelmingly likely that any future ruling that guts or jettisons Roe will be decided by a High Court that holds the '73 decision was wrong on its legal reasoning; Roe won't be ended by a court's declaration that fetuses are persons entitled to Equal Protection.

Posted by: P.B. Almeida | Nov 15, 2004 7:58:50 PM

If you take the latter approach then the rest of the legal doctrine can stand, but the issue arises of why the right to privacy wouldn't extend to this matter. The answer would pretty much have to be that abortions aren't private conduct because the fetus has the rights of a person.

No. You don't have to deny that the privacy and liberty interests of women are at stake. And you don't have to assert that the fetus is a person. All you have to say is that states have a legitimate interest in protecting fetal life (as they do in protecting animal life, for example, without anyone saying animals are persons).

Roe (and Casey) already concede this. So they both make no sense, since in every other context, the Court allows state legislatures to limit privacy and liberty if it is the least drastic means to fulfill a compelling state interest.

Is there a danger of an anti-Roe, i.e., a finding that the constitution requires that abortion be illegal. It isn't likely in the foreseeable future. Scalia, for instance, has publicly ridiculed the idea.

Your first point, of course, is a good one. If Roe is overruled, some women will not have access to legal abortions.

Posted by: Gareth | Nov 15, 2004 8:01:35 PM

Given that this issue has always been dominated by ethical/spritual/debates, I think it's reasonable to assume that the intractable issue could prove a winner if we own the practical debate.

With a few exceptions (say white collar crime), I am unaware of criminalization ever reducing the number of or minimizing the net societal effect of any widespread social problem. Glance at a few murder rate snap shots over history for more evidence--let alone the drug war.

The conservative movement is at a severe weakness when the rubber meets the road. They are the victims of their own propaganda here: if there are 3600 abortion procedures performed each day in the U.S., then overturning Roe tunrs some significant proportion of them into criminals.

How are they going to be tracked down by state authorities?

Will new court rules need to be adopted to insure that women receive a ruling on whether their pregnancy is the result of rape or incest before their second trimester is over?

Will states like Kansas, Alabama and Mississippi that are unlikely to grant exceptions work to monitor inter-state travel?

All of these questions strike at the libertarian soul of the United States: there is no way to make the procedure illegal without immensely increasing the power of the state, and when powerful images (an OB/GYN doing a perp walk, sherriff's knocking at women's doors to see what is going on in thier basements) define this for citizens, all but the most steely-eyed 10% of pro-lifers could be persuaded to change their minds, perhaps for good.

The practical side of gearing up for yet another doomed prohibition--let alone one as intimate as a woman's decision over her body-- should be an issue that gives every conservative state legislator and governor aggravated enuresis, and brings law enforcement, progressives, centrists, libertarians and moderate (i.e. "rich" Republicans) into lock step.

Posted by: Sean | Nov 15, 2004 8:22:48 PM

Many women will die, yet as usual,men engage in sterile quid pro quo argument seeking trade-offs to gain electoral victories.

Posted by: prowomenslife | Nov 15, 2004 8:37:45 PM

What status does the fetus have? And on what basis does one differentiate it from the moral and legal rights that I would assume you grant to the prematurely born baby who if he had remained in utero would have been subject to legal, lethal violence?

And for those who think this is solely or even primarily an issue of knuckle-dragging fundamentalists, I suggest that it is precisely this sort of condenscension that results in continuing electoral defeat. Robby George one of the strongest pro-life voices is not a fundamentalist, is erudite, educated, and makes arguments based on not on religion but on reason.

Posted by: Cheeky Lawyer | Nov 15, 2004 8:37:50 PM

I'm pretty sure the argument in the above comment moves from the premise that if abortion were criminalized (which would be a bad thing) there would still be many abortions (possibly nearly as many as there are without criminalization) to the conclusion that abortion should not be criminalized. But this argument cannot be right, as the mention of murder points out. No one moves from the premise that murders take place with murder criminalized (possibly nearly as many as there would be without criminalization, I've never looked at numbers on this) to the conclusion that murder should not be criminalized. This argument seems like a non-starter to me, so what am I missing?

Posted by: washerdreyer | Nov 15, 2004 8:41:16 PM

This is the logic of virtually all the pro-life rhetoric one hears, and in the legal context it's the logic of the analogies drawn between Roe and the pre-Civil War slavery cases.

I've been noticing an increasing level of identification among anti-abortionists with the abolition movement of the 19th century. Despite his reputation as a national crank in the mainstream media, Alan "Alan Keyes Is Making Sense" Keyes has been one of the most prominent prolifers to make the slavery/abortion connection, which of course has added resonance among African-Americans.

Just as the Repubs flew under the Democratic radar in garnering Hispanic and Latino votes, the Dems might want to pay closer attention to the anti-slavery rhetoric of Keyes et al, lest they find yet another assumed minority vote has been carried off to the Red State cause.

(Of course the irony is probably lost on Red Staters that most of the white ancestors of the prolife movement were themselves slaveowners, but I digress.)

Posted by: oodja | Nov 15, 2004 9:00:06 PM

except for prowomenslife you all sound like men who wont ever have to make the choice. you will never know what it means to women who find themselves in that position to be able to chose- either way.
I hope the Dems and moderate R's have the guts to fight against any nominee who seems to be in favor of overturning Roe on whatever grounds they could find.

Posted by: jgh | Nov 15, 2004 9:04:41 PM

May I suggest that compromising or conceding on an issue so historically important to the Democratic base might be seen as a sign of weakness and desperation? Are we really at the point of triage, deciding which of our protected constituencies to throw overboard?

We have betrayed the blacks with affirmative action, the urban poor with welfare reform, the unrepresented on the death penalty, and are about to throw the elderly into the streets in the name of tax cuts for the rich...

and y'all think giving in on abortion is really gonna scare those Republicans. Craven pissant yuppies.

Posted by: bob mcmanus | Nov 15, 2004 9:20:59 PM

Let's suppose Roe is overturned; abortion will be legal in a considerable number of states, on roughly the same terms as it is today. And while the pro-life movement's leaders might like abortion to be illegal at all stages of pregnancy, everywhere, that isn't a likely outcome; what is likely is that the laws vary from state to state, over roughly the same territory that the laws within Europe vary. If that is what happens, 1st-trimester abortions will be legal almost everywhere; 2nd-trimester will be considerably more restricted; 3rd-trimester will require a serious threat to the mother's life.

I think Gareth is on the right track (as is Scalia). Judgments on moral issues are better left to legislatures than courts, because then they will reflect the moral consensus of the society. We grant some rights to non-humans--I cannot starve my pets legally--so I see no problem with asserting that a fetus, at some stage of development, has some rights, but isn't a person.

Posted by: SamChevre | Nov 15, 2004 9:27:19 PM

SamChevre wrote:
Let's suppose Roe is overturned; abortion will be legal in a considerable number of states, on roughly the same terms as it is today. And while the pro-life movement's leaders might like abortion to be illegal at all stages of pregnancy, everywhere, that isn't a likely outcome; what is likely is that the laws vary from state to state, over roughly the same territory that the laws within Europe vary. If that is what happens, 1st-trimester abortions will be legal almost everywhere; 2nd-trimester will be considerably more restricted; 3rd-trimester will require a serious threat to the mother's life.

Umm, is this exacly the way things are now, under Roe? Yes, it is...

The point of overturning Roe would be to change this scenario, wouldn't it?

Posted by: eric | Nov 15, 2004 9:40:29 PM

May I suggest that compromising or conceding on an issue so historically important to the Democratic base might be seen as a sign of weakness and desperation? Are we really at the point of triage, deciding which of our protected constituencies to throw overboard?

I'm not advocating any compromises or concessions, merely pointing out that the recent conflation of slavery with abortion can't possibly help the pro-choice cause, especially among certain core constituencies within the Democratic party.

The Dems need to recognize the danger at hand and find a way to respond to it if they're going to stay on top of this issue. Instead, all we've gotten of late are Kerry-esque "I really respect your religious beliefs, so much so that I dare not defend my point of view" half-hearted equivocations on both abortion and the gay marriage issue.

Fuck that. If it's so historically important, take off the goddamned gloves and come out swinging. Red Staters don't respect our secular beliefs, so why the Hell should we pay lip service to their religious obsessions?

Posted by: oodja | Nov 15, 2004 9:43:15 PM

Continuing...

Yes, I do agree that if the republicans leave it up to the states, abortion in the 1st trimester might still be legal in some places (and that is a big if) and it won't include ANY of the red states.

Posted by: eric | Nov 15, 2004 9:46:35 PM

Eric writes:

"1st-trimester abortions will be legal almost everywhere; 2nd-trimester will be considerably more restricted; 3rd-trimester will require a serious threat to the mother's life.


Umm, is this exacly the way things are now, under Roe? Yes, it is...


The point of overturning Roe would be to change this scenario, wouldn't it?"

Are you so dense that you don't know that under Roe, Doe, and Casey, abortion is basically legal on demand up into the moment of birth? I am continually astounded by the total lack of a grasp of the facts by pro-choicers. Health exception = anything.

And oodja my opposition to abortion is not primarily a religious "obsession" it has a secular basis. Most pro-lifers I know including the great liberal writer Nat Hentoff, an avowed atheist, come to their beliefs on abortion based on rational reasons. This is a human rights issue--the preeminent one of our time--which is not primarily or even solely a religious view.

Posted by: Cheeky Lawyer | Nov 15, 2004 10:48:42 PM

Why is it that when liberals talk about Roe and abortion nobody mentions the constitution?

Oh yeah, the constitution has absolutely nothing to say about abortion and Roe had nothing to do with constitutional interpretation.

Posted by: Reg | Nov 15, 2004 11:25:54 PM

Sean:
The practical side of gearing up for yet another doomed prohibition--let alone one as intimate as a woman's decision over her body-- should be an issue that gives every conservative state legislator and governor aggravated enuresis, and brings law enforcement, progressives, centrists, libertarians and moderate (i.e. "rich" Republicans) into lock step.

I think most Republicans with any power have realized this, and for them abortion is a cynical ploy to garner votes. They know outlawing abortion (or even taking it away as a right) will kill them. It will not only radically mobilize the left, it will attract a not small number of moderates to the left and radicalize them. It will also destroy a tool that has been the most effective vote- and money-getting tool that Republicans have. That's why they are so fond of supporting anti-abortion legislation that they know is going to be struck down: rev up the base without actually giving them anything.

No, I don't think there will be any big push by Republicans to overturn Roe. They have things exactly like they want them now. If Roe should fall it will be by a combination of some accident and loss of control of the religious base.

Posted by: Timothy Klein | Nov 15, 2004 11:33:05 PM

"A particularly activist right-wing court might order states to write plans to protect fetuses and then monitor the enforcement of them"

Wow you have to be really really off your rocker to believe this. There isn't a single justice who has ever been on the court that would favor this. I can't think of a single judge or scholar who would propose this.
The big 3 (Thomas, Scalia, and Rehnquist) oppose any rights not in the bill of rights being pulled out of the due process ether.

Now, if leftists really believe the crap they spew about how constitutional interpretation can rely on the values the constitution aspires to, and conservatives become convinced (or become so entrenched that they feel the liberty to indulge), then you may see this.
Here is my pseudo-constitutional reasoning: well, look at the text. Life comes before liberty or property. Society and custom and history suggest that life is the most important value. Surely the enumbras from the pembranations of this life right so highly valued by the constitution encompass the pre-born. Interfering with this right intrudes upon the type of ordered liberty upon which this country was founded, and really, nobody can do anything to stop my impositions of my own moral views into every state of the Union, so thats that. Suck it NOW! Isn't judicial activism grand!

Posted by: Reg | Nov 15, 2004 11:39:48 PM

Reg -
Please provide a list of sites where you regularly comment in support of the posts so that I can deliberately misread everyone's comments there and then make fun of my misread version of their comments. For instance, you claim that liberals (not any particular commenter) don't talk at all about the constitution while discussing Roe, except that MattY certainly did discuss privacy rights which was the Roe court's constitutional justification for their decision. Then you mock your conception of liberals, thinking that it describes the people here, for something that didn't even happen. Next, you mock cmdicely for giving an absolute worst case scenario in a post with two different phrases pointing out why such a scenario would never take place. So you tell him he's "off his rocker" for thinking it takes place. In your next comment, I recoommend saying that the problem with liberals is that they condescend to you, it has as little to do with anything in this thread as your previous comments.

Posted by: washerdreyer | Nov 16, 2004 12:05:03 AM

Cheeky Lawyer said:
Are you so dense that you don't know that under Roe, Doe, and Casey, abortion is basically legal on demand up into the moment of birth? I am continually astounded by the total lack of a grasp of the facts by pro-choicers. Health exception = anything.

I take this to mean that CL thinks that our society is rampant with scofflaw women who carry pregnancies nearly to term, then have abortions because it's convenient, or pleasant, or for some other reason that does not include a profound defect in the fetus, or a profound risk to the mother. Even in the unlikely case that this is true, is it in society's interest to protect the fetus (regardless of its prospects) and sacrifice the mother? 'Human Rights' indeed.

Reg said:
"Why is it that when liberals talk about Roe and abortion nobody mentions the constitution?"

Setting aside the fact that the ENTIRE ARGUMENT revolves around the Constitution...

When the Constitution was written, abortion before 'quickening' (the first perceptible movement of the foetus - about 20 weeks) was not illegal anywhere in the colonies. After 'quickening', the states generally reflected English Common Law, which held it to be a 'misprision', or misdemeanor. The first American state to outlaw pre-quickening abortion was New York, 1n 1828. It was a misdemeanor. That law had a post-quickening exception in case the abortion "shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose."

The founders didn't put lots of things in the Constitution. When did conservatives decide that rights not specifically enumerated in the Constitution inhere to the Republican Party?

Posted by: s_bethy | Nov 16, 2004 12:05:31 AM

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