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Letting Go Of Counterintuition

I assign a roughly 55 percent credence to the counterintuitive liberal case against Roe v. Wade, but sure this is the most common, obvious, banal, and widely circulated counterintuitive argument on the face of the planet. Writers and editors who think they're being bold, daring, or even minimally interesting by giving voice to it are living in a spider hole of denial of some sort. What would be really counterintuitive would be an article arguing:

  • Roe v. Wade was a correct decision as a matter of law.
  • For that matter, the broader line of privacy decisions (Griswald, etc.) were correct.
  • Roe has made it easier for women to obtain abortions and this is a good thing.
  • By firmly wedding the growing constituency of unmarried women to the Democratic Party, Roe and its defense has been good for liberalism.
I'm not sure that "orthodox" liberal argument is correct, but surely it's not insane (I'll give it 40 percent credence) and someone ought to be making it. It's a lot more interesting than the stultifying conformity of self-conscious non-conformity.

UPDATE: My colleague Sam Rosenfeld, while insisting he's not complaining, seems to think I should note that I basically stole this idea from something he said at a meeting yesterday.

January 20, 2005 | Permalink

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» Why the Pro-Choice and Pro-Roe Stance is Correct from leftinthewest.com
Matthew Yglesias looks for a truly bold, truly counterintuitive piece of writing on Roe v. Wade and has four signposts that he would like to see included: Roe v. Wade was a correct decision as a matter of law. For that matter, the broader line of pri... [Read More]

Tracked on Jan 20, 2005 6:12:43 PM

» Why Roe Was Right: Foreword from Lawyers, Guns and Money
In addition, Roe has the virtue of making American abortion policy actually consistent with the rule of law. [Read More]

Tracked on Jan 20, 2005 8:27:19 PM

» On Why Roe was Bad for Progressives from NathanNewman.org
In the discussion of evolution and judicial activism, the discussion inevitably jumped (inevitably) to Roe v. Wade. The fact is... [Read More]

Tracked on Jan 24, 2005 9:02:42 AM

» On Why Roe was Bad for Progressives from NathanNewman.org
In the discussion of evolution and judicial activism, the discussion inevitably jumped (inevitably) to Roe v. Wade. The fact is... [Read More]

Tracked on Jan 24, 2005 9:05:18 AM

Comments

Why we should be against any private accounts: For awhile, they would outperform Social Security pension fund investments. This could go on for a few years and the disparity would widen. There will be great pressure, then, to convert all of Social Security into the higher yielding private accounts. In our madness for MORE we will completely forget the name of the program is Social SECURITY, not Social SPECULATION. Then comes the crash.

Is there any kind of private plan that would survive a 1929 style crash? Please explain if there is.

Posted by: James of DC | Jan 20, 2005 4:52:50 PM

I really did not imply, nor do I think, that you should have noted any such thing. Christ, how interesting can this be to anyone else?

Posted by: Sam Rosenfeld | Jan 20, 2005 4:54:39 PM

Tell Sam Rosenfeld to get his own blog then!

Posted by: Dan the Man | Jan 20, 2005 4:55:07 PM

Okay, I'll bite. What theory(ies) have the remaining 5% credence?

Posted by: space | Jan 20, 2005 4:58:36 PM

I'm not sure that "orthodox" liberal argument is correct, but surely it's not insane (I'll give it 40 percent credence) and someone ought to be making it.

It may not be insane, but I have my doubts as to whether it could garner the support of 40% of left-of-center constitutional law scholars. You have your hard-core realists and CLS types, of course, but among people who accept the idea of doctrine in the first place - well, I dunno, it might be pretty rare. (Probably more than 40% would uphold Roe now, of course, if they were in a position to do so, but that would be on the basis of stare decisis or something like that.)

But then, I've never seen any survey data on this. It would be interesting to know.

Posted by: JP | Jan 20, 2005 5:11:08 PM

Roe has made it easier for women to obtain abortions and this is a good thing.

YAY! more abortions!

soon, we'll get far to the left enough to have forced abortions just like the Chicoms and the Russkies. Progress! It's counterintuitive, but grand.

Post article:

In February, Pu heard about a defamation suit in Fuyang, an urban backwater in the eastern province of Anhui, about 575 miles south of Beijing. A local party official had sued the husband-and-wife authors of "An Investigation of China's Peasantry," a literary exploration of poverty and the abuse of power in rural China.

"I read the book carefully, and it made me furious," Pu recalled. The stories reminded him of his own experiences in the countryside; only a decade earlier, officials enforcing the government's one-child policy had forced his sister-in-law to abort a pregnancy in the ninth month.

Posted by: kajsdlkjasd | Jan 20, 2005 5:15:48 PM

...correct decision as a matter of law...

There's no such thing as a 'correct decision as a matter of law' for anything that ends up in the SC. Everything is a matter of interpretation. Reasonable people can disagree.

Posted by: abb1 | Jan 20, 2005 5:20:29 PM

Griswold is cleary grounded in the majority's view of the "sanctity of marriage," and the special weight given that relationship. Later privacy decisions go way beyond this (NTTAWT), but clearly one could argue Griswold was correct on its facts, and later decisions went too far.

As far as Roe v. Wade being correct as a matter of law, hard to argue other than as an extension of Griswold.

Posted by: Ugh | Jan 20, 2005 5:22:01 PM

By firmly wedding the growing constituency of unmarried women to the Democratic Party, Roe and its defense has been good for liberalism.

Roe and its defense has been good - as oppose to what?

To advocating abortion ban? Certainly.

To advocating and defending a legislative solution? I don't think so.

Posted by: abb1 | Jan 20, 2005 5:25:04 PM

YAY! more abortions!

No one said more abortions. There were more abortions before they were legal. He said easier (and you could add way safer).

Posted by: absynthe | Jan 20, 2005 5:25:25 PM

If the Supreme Court overruled Roe v. Wade, it would be the biggest boom to Democratic politics since FDR.

Posted by: Ugh | Jan 20, 2005 5:26:22 PM

I'm not sure that "orthodox" liberal argument is correct, but surely it's not insane...

Well, duh. Of course it's not insane. It's just that the "counterintuitive" argument may be stronger.

Posted by: abb1 | Jan 20, 2005 5:29:09 PM

There were more abortions before they were legal.

I don't doubt this necessarily, but do you have a cite?

Posted by: JP | Jan 20, 2005 5:31:17 PM

It's a lot more interesting than the stultifying conformity of self-conscious non-conformity.

It seems that no one else is going to say "physician, heal thyself," so I guess it will have to be me.

Posted by: Realish | Jan 20, 2005 5:35:28 PM

could someone give a quick outline of what the "counterintuitive argument" is for those of us who do not subscribe to the Atlantic?

I imagine it relates to Matt's point on liberals focusing too much on legal victories rather than persuading voters, but I'm not sure...

Posted by: right | Jan 20, 2005 5:41:52 PM

"My colleague Sam Rosenfeld, while insisting he's not complaining, seems to think I should note that I basically stole this idea from something he said at a meeting yesterday."

What the fuck are meetings for if not to steal each others ideas?

Posted by: Petey | Jan 20, 2005 6:02:41 PM

I should point out that the legislative momentum for legalizing abortion had pretty much stalled out by the time Roe was decided.

So, it is unlikely that a legislative solution would have produced the wide legality of abortion today.

Posted by: Patrick | Jan 20, 2005 6:42:05 PM

"If the Supreme Court overruled Roe v. Wade, it would be the biggest boom to Democratic politics since FDR."

I am not so sure. Anna Quindlen in Newsweek makes the case against Mississippi. If a young woman leaves a reactionary Mississppi because of its horrible social policies, she is not going to move to Alabama.

Republicans and conservatives may not care if there are any moderates left in the Red States. They have a political advantage written into the Constitution(Senate & Electoral College), or at least a head start on gaining power.

Posted by: bob mcmanus | Jan 20, 2005 7:16:35 PM

I don't think we should have forced abortions or anything, but sometimes I think that, as a tactical maneuver, we should have some Singerite-types who advocate legalizing shortly post-partum abortions (erm... infanticide). It's not that I really agree with such positions, but right now the status quo -- a woman's choice during her pregnancy -- is basically most extreme position in the public debate, which might be tactically disadvantageous (moderates think things like, "well, I think abortion should be legal in the first trimester, and restricted in the second, and banned except for maternal life/health preservation in the third"). If we had some radical Singerite types calling for abortion to be legalized until, say, the third month after birth, then NARAL could say, "well, there are these extreme pro-abortionists who think that abortion should be legal some time after birth, and there are these extreme anti-abortionists who think that abortion should be illegal during pregnancy, but we're trying to stake out the middle path here, and our compromise is to have abortion legal during pregnancy and illegal after birth." Of course, having fringe groups advocate forced abortions could also work to make NARAL more moderate. Or maybe we could have both, with different fringe pro-abortionists advocating different things. Or maybe they could be the same group, advocating compulsory infanticide. Maybe we could bring altars into this somehow...

The only problem is, fringe ideas, if advocated long enough, can become realities.

Flippancy aside, Roe v. Wade also is useful in the respect that it federalizes the issue, giving the whole pro-choice movement a rallying point to defend. If abortion were still a state issue, then probably a lot fewer people would really know what the law is, or how it should be changed, or how it should be kept the same, possibly reducing overall involvement. Of course, the same is true on the pro-life side: they have a nexus they need to attack, whereas if it were a state issue, they would probably be less sure what's needed to be changed and such. I don't know whether the nationalization of abortion as a policy issue overall has a pro-life or pro-choice bias.

Posted by: Julian Elson | Jan 20, 2005 8:14:39 PM

Sometimes I think I am the only sane person around when it comes to Roe v. Wade.

Roe merely held that states cannot constitutionally pass laws which ban abortions in the first or second trimester.

So what happens if Roe is overturned? Easy! It means that state can consitutionally pass laws which ban abortion in the first or second trimester.

Now here's what we on the left often overlook. Ready? Just because states can ban abortion in the first or second trimester doesn't mean that they will.

There are several barriers. For one thing, many states have recognized in their state constitution that there exists a right to privacy which protects a woman's right to choose. So even if Roe dies, pro-lifers have to take their battle to many individual state courts and win in each of them.

And that's assuming that the pro-lifers can convince state legislatures to enact anti-abortion laws in the first place, which I doubt -- except in the reddest of red states.

So, overturning Roe is a small first step in a long road for pro-lifers. Assuming they are able to do it, their ability to bring about ACTUAL legal change preventing abortions will take years, by which time (one hopes) the make-up of the Supreme Court will have swung back to a more moderate (or even leftist) position.

So let's not scare-monger Roe the way the right is scare-monger Social Security. We should be concerned about overturning Roe, but let's not overplay the hand. That's what I would like to see the left write about.

Posted by: Ken Ashford | Jan 20, 2005 9:10:09 PM

"soon, we'll get far to the left enough to have forced abortions just like the Chicoms and the Russkies."

No, fool--that would be unconstitutional. Roe recognized a right to choose. We're not pro-abrotion-we're pro-choice.

Posted by: rea | Jan 20, 2005 9:21:49 PM

I think JP is correct; there are very few con law scholars (whatever their opinion on abortion) who think Roe is good as a legal decision--many would yield to stare decisis at this point, but it's still a lousy decision (poorly reasoned, poorly based).

Posted by: SamChevre | Jan 20, 2005 10:12:20 PM

Just to beat my pro-life liberal drum for a moment. I'd disagree with the fourth point of the argument simply because it assumes that unmarried women are naturally liberals because of a single issue (which, granted, I don't think is a particularly liberal issue anyway) - a nontrivial number of pro-choice women voted for George W. Bush: they didn't think he was much of a threat on abortion. To reiterate a point made in the TAPPED's phone interview from yesterday - with 4 years of Senatorial dominance, and 2 years of complete dominance of the entire government, we haven't seen a substantive piece of pro-lifer legislation appear. The last one I've heard about (anaesthesia for fetuses being aborted) is tied into the general "push the Democrats into a nasty corner" theme that partial-birth started.

There are a significant number of liberals and semi-liberals (is liberalism something that we want to be graded? Is a Catholic-ethic driven pro-union, anti-death penalty, anti-abortion labor Democrat less of a liberal than a pro-free-trade pro-gay marriage New Democrat?) who are turned off by a vibe that the only 'good' liberal is a strongly pro-choice liberal. I would argue that the precise reason that Roe has been bad for the Democratic party is that its wedded liberalism and Democrats to one issue - instead of allowing for flexibility and individual conscience.

Posted by: Mike Collins | Jan 20, 2005 10:50:52 PM

Good post, Matthew. You really make an excellent point that it's less scary to criticize Roe and pretend you're saying something shocking than to actually step up and defend it which might actually be a hard and controversial position to take.

What I don't understand is why everyone talks about Roe, but no one talks about Planned Parenthood v. Casey. Yes, Roe was not the best decision the Court ever passed down, although it certainly wasn't the worst in terms of legal reasoning and clarity of argument. But Casey is a very well reasoned opinion by O'Connor with an even better concurrence by Stevens. It seems like we've let the right frame this debate once again. They like using Roe becaues of it's cultural significance and because it isn't an airtight opinion, but never mention Casey. And so, obediently, neither do liberals.

Posted by: Julie | Jan 21, 2005 12:31:32 AM

I don't know. I'm pro-choice, but I think Roe is bad legal reasoning. What it basically says is that a fetus is not a person, yet abortion can be regulated after the first trimester. The decision sets up some rather aribtrary goalposts for when there can be regulation and when there can't be.

Seems to me that the Supreme Court should define once and for all what a "person" is. If there's one common thread among Supreme Court decisions since the 70s, it's the total unwillingness to take a Constitutional stand on any issue.

Posted by: Adam Herman | Jan 21, 2005 2:26:56 AM

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