More On Roe

Given the previous discussion of Roe, I wanted to give some excerpts from the decision for the consideration of our readers. Follow me to the flip.

Excerpts of the Roe v Wade opinion for your consideration:

The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id., at 460 (WHITE, J., concurring in result); or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S., at 486 (Goldberg, J., concurring).

. . . The third reason [for prohibiting abortions] is the State's interest -- some phrase it in terms of duty -- in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. The State's interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484-485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454; id., at 460, 463-465 (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization). We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.

Where certain "fundamental rights" are involved, the Court has held that regulation limiting these rights may be justified only by a "compelling state interest," Kramer v. Union Free School District, 395 U.S. 621, 627 (1969); Shapiro v. Thompson, 394 U.S. 618, 634 (1969), Sherbert v. Verner, 374 U.S. 398, 406 (1963), and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. Griswold v. Connecticut, 381 U.S., at 485; Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307-308 (1940); see Eisenstadt v. Baird, 405 U.S., at 460, 463-464 (WHITE, J., concurring in result).

In the recent abortion cases, cited above, courts have recognized these principles. Those striking down state laws have generally scrutinized the State's interests in protecting health and potential life, and have concluded that neither interest justified broad limitations on the reasons for which a physician and his pregnant patient might decide that she should have an abortion in the early stages of pregnancy. Courts sustaining state laws have held that the State's determinations to protect health or prenatal life are dominant and constitutionally justifiable.

. . . With respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.

This means, on the other hand, that, for the period of pregnancy prior to this "compelling" point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

(Emphasis supplied.) I submit that, whether you agree with the Roe decision or not, no one can credibly claim it falls outside the mainstream of jurisprudence or applies rules of constitutional interpretation that were in any way new or remarkable. Indeed, I would argue that if you believe that Griswold and Eisenstadt were correctly decided, and that viability of the fetus is trigger to the State's compelling interest, then the decision in Roe is mandated.

It so happens that Roe is a poorly written decision that hides its reasoning behind a good deal of extraneous verbiage. But when the reasoning is properly highlighted, I defy any legal scholar to argue that Roe is some travesty of jurisprudence. It is of course possible to disagree with it as many do. It is not possible, in my view, to claim to disagree with it and state that you are arguing the progressive view of Roe v. Wade. You are not. You are arguing the conservative view of Roe v. Wade.

Too many people get intimidated by Harvard law professors and the like on reading Roe. The "tyranny of credentialism" is my phrase for it. But I have always defied it. I read Roe myself. I read the reasoning. I read Griswold. I read Eisenstadt. I read Meyer. And of course, I read Justice Brandeis' famous dissent in Olmstead. Read them for yourselves. Do not let the Cass Sunsteins of the world deprive you of the ability to read the words. Their distaste for the decision in Roe is not borne from a fair reading of the Constitution or the precedents or the Roe opinion itself. It is borne of the drive to sell their idea of Constitutionalism - they call it "mininalism" - that is anathema to the progressive tradition regarding the courts. They are radically conservative in many respects while attempting to wear the mantle of progressive. Perhaps their approach is the correct one. But it is not the liberal or progressive one. And their descriptions of Roe are inaccurate.

By Big Tent Democrat, speaking for me only

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    Never let the claim of credentials (5.00 / 6) (#1)
    by Big Tent Democrat on Sun Sep 14, 2008 at 08:08:30 PM EST
    intimidate you. Cass Sunstein loves to flash his to cover his weak thinking.

    He is a poor legal scholar and thinker in my view.

    Justice Ginsburg's views on the privacy right (5.00 / 5) (#2)
    by Big Tent Democrat on Sun Sep 14, 2008 at 08:17:18 PM EST

    When asked a specific question about a right to privacy, Ginsburg said:

    "There is a constitutional right to privacy composed of at least two distinguishable parts. One is the privacy expressed most vividly in the fourth amendment: The Government shall not break into my home or my office without a warrant, based on probable cause; the Government shall leave me alone. The other is the notion of personal autonomy. The Government shall not make my decisions for me. I shall make, as an individual, uncontrolled by my Government, basic decisions that affect my life's course. Yes, I think that what has been placed under the label privacy is a constitutional right that has those two elements, the right to be let alone and the right to make basic decisions about one's life's course."

    Some in the previous thread claimed, as did Sunstein in his Op-Ed today, Ginsburg rejected the right to privacy. They are wrong.

    This is all Sunstein said today about Ginsburg: (none / 0) (#6)
    by robrecht on Sun Sep 14, 2008 at 08:27:28 PM EST
    <blockquote>Nor is it surprising that Justice Ruth Bader Ginsburg - the most important women's rights lawyer in the history of American law, but also a judicial "minimalist" - has sharply criticized Roe for doing so much so fast.

    ... As Ginsburg has also urged, Roe v. Wade is now best seen, not only as a case about privacy, but also as involving sex equality.</blockquote>  <a href="http://www.boston.com/bostonglobe/editorial_opinion/oped/articles/2008/09/14/the_fate_of_roe_v_wade_and_choice/">Link</a>

    Doesn't seem like Sunstein said today that Ginsburg rejected the right to privacy.


    He clearly implies it (5.00 / 1) (#7)
    by Big Tent Democrat on Sun Sep 14, 2008 at 08:29:01 PM EST
    And suggests that Ginsburg agrees with his view of Roe and the privacy right.

    It is a very dishonest bit of work by Sunstein.

    And he is consistently dishonest.


    If Sunstein was really trying to imply that (none / 0) (#9)
    by robrecht on Sun Sep 14, 2008 at 08:38:10 PM EST
    it's just another clearly idiotic statement like Roe v Wade not being based on precedent.  Ginsburg was completely unambiguous about the right to privacy in her confirmation hearing.

    <a href="http://www.nominationwatch.org/justice_ginsburg/">Link</a>


    Of course that is what he implied (5.00 / 1) (#10)
    by Big Tent Democrat on Sun Sep 14, 2008 at 08:39:57 PM EST
    You can not really doubt it, especially in the face of what you yourself cite in your comment - his attempt to argue that Roe was unmoored from the Constitution and precedent.

    It is a disgraceful opinion piece.


    Didn't he read the decision? (none / 0) (#13)
    by snstara on Sun Sep 14, 2008 at 08:49:29 PM EST
    Didn't he see the previous precedent cited?  Or does he just interpret the Constitution in ways that strain credulity, like John Yoo?

    And, this man is an advisor to Obama?  How sad.


    Not sure why my links and block quotes aren't (none / 0) (#14)
    by robrecht on Sun Sep 14, 2008 at 08:50:22 PM EST
    working sometimes.

    <a href="http://articles.latimes.com/2007/apr/20/opinion/oe-sunstein20">Here</a>'s another column of Sunstein's discussion Ginsburg if you're interested.

    I'm out of my depth so I won't try to argue that I understand him better than you.  I don't.


    Thank you (5.00 / 5) (#3)
    by kredwyn on Sun Sep 14, 2008 at 08:21:42 PM EST

    Justice Roberts in his confirmation hearings (5.00 / 2) (#4)
    by Big Tent Democrat on Sun Sep 14, 2008 at 08:23:25 PM EST

    SPECTER: Do you believe today that the right to privacy does exist in the Constitution?

    Roberts: Senator, I do. The right to privacy is protected under the Constitution in various ways.

    It's protected by the Fourth Amendment which provides that the right of people to be secure in their persons, houses, effects and papers is protected.

    It's protected under the First Amendment dealing with prohibition on establishment of a religion and guarantee of free exercise.

    It protects privacy in matters of conscience.

    It was protected by the framers in areas that were of particular concern to them. It may not seem so significant today: the Third Amendment, protecting their homes against the quartering of troops.

    And in addition, the court has -- it was a series of decisions going back 80 years -- has recognized that personal privacy is a component of the liberty protected by the due process clause.

    The court has explained that the liberty protected is not limited to freedom from physical restraint and that it's protected not simply procedurally, but as a substantive matter as well.

    And those decisions have sketched out, over a period of 80 years, certain aspects of privacy that are protected as part of the liberty in the due process clause under the Constitution.

    Let me expound (5.00 / 2) (#5)
    by Big Tent Democrat on Sun Sep 14, 2008 at 08:26:11 PM EST
    When Roberts says:

    "And those decisions have sketched out, over a period of 80 years, certain aspects of privacy that are protected as part of the liberty in the due process clause under the Constitution."

    He is discussing Meyer, Griswold, Eisenstadt, Roe and Casey et al.

    You can disagree with Roe's reasoning that the right to privacy extends to a woman's right to choose to terminate her pregnancy. But you can not, with a straight face, claim that Roe is some outlandish decision unmoored from the Constitution and the precedents of the Court on which it is based.


    I wish we could just accept SDP and move on (none / 0) (#17)
    by davnee on Sun Sep 14, 2008 at 09:18:56 PM EST
    I wish we could just accept substantive due process (for its good and for its ill) and all move on from both Roe rage and the Lochner bogeyman.  I hope Roberts, based on his quote, has really done that.  That would be encouraging.

    But he hasn't. (none / 0) (#21)
    by Pegasus on Sun Sep 14, 2008 at 10:28:29 PM EST
    It's a naive hope.  They'd overturn Roe in an instant if they had the votes.  It would be all too easy for them.

    I know. I know. (none / 0) (#23)
    by davnee on Sun Sep 14, 2008 at 10:44:22 PM EST
    If wishes were horses and all that.  But it would be nice if we could all move on.

    Abortion would not be banned (none / 0) (#38)
    by Fen on Mon Sep 15, 2008 at 12:43:33 AM EST
    it would merely be sent back to the states.

    And I have a bridge in Ukraine to sell you (5.00 / 1) (#41)
    by andgarden on Mon Sep 15, 2008 at 12:48:20 AM EST
    Keep your bridge (none / 0) (#43)
    by Fen on Mon Sep 15, 2008 at 12:50:40 AM EST
    the abortion issue would fall back to the states.  

    Really (5.00 / 1) (#47)
    by Steve M on Mon Sep 15, 2008 at 12:53:12 AM EST
    Would you unilaterally decree that Congress has no power to legislate on abortion?  Because they don't seem to have received your ruling.

    The attached picture (none / 0) (#49)
    by andgarden on Mon Sep 15, 2008 at 12:56:37 AM EST
    gives me the chills.

    Yes, you tend to have the (none / 0) (#68)
    by Militarytracy on Mon Sep 15, 2008 at 08:29:54 AM EST
    same "unfriends" in this life that I do.

    I so much more want to spend time (5.00 / 2) (#8)
    by Militarytracy on Sun Sep 14, 2008 at 08:31:16 PM EST
    discussing this.  It is late though here and son and I must retire soon so I'll have to return tomorrow.  Thank you BTD!

    Thanks for posting this. (5.00 / 2) (#11)
    by snstara on Sun Sep 14, 2008 at 08:40:45 PM EST
    I think it ought to be required reading.  

    So many people discuss Roe (5.00 / 2) (#12)
    by Big Tent Democrat on Sun Sep 14, 2008 at 08:41:56 PM EST
    without actually discussing Roe the decision and opinion.

    Our previous thread was a particularly galling exercise of that species of Roe Rage.


    It's a more serious version of people (none / 0) (#16)
    by snstara on Sun Sep 14, 2008 at 09:11:33 PM EST
    discussing the merits of a best-seller they haven't read, based strictly on the reviews.  

    I confess (none / 0) (#15)
    by Steve M on Sun Sep 14, 2008 at 09:03:28 PM EST
    my term paper did not go as far back as Union Pacific v. Botsford!  I don't think I've ever heard of that one.

    Kudos (none / 0) (#18)
    by oldpro on Sun Sep 14, 2008 at 09:25:51 PM EST
    for the clarity of your short course on Roe.

    about to go into a movie (none / 0) (#19)
    by andgarden on Sun Sep 14, 2008 at 09:27:11 PM EST
    but thanks for putting this up BTD. I know how much you hate credentialism, and reading the original text is essential.

    Roe was correctly decided!

    I'll play devil's advocate. (none / 0) (#20)
    by Pegasus on Sun Sep 14, 2008 at 10:26:13 PM EST
    Briefly, anyway.  

    I certainly agree with the central holding of Griswold and Eisenstadt that there's a constitutional right to privacy.  And FWIW, I personally buy the viability argument as a trigger for the state's interest.

    But (and this is the devil's advocate speaking) the point at which state interest kicks in is properly a political, which is to say legislative, one.  It's awfully paternalistic for the courts to say what the state does or does not care about.

    Have at me.  :)

    Bear in mind that the context (none / 0) (#22)
    by kredwyn on Sun Sep 14, 2008 at 10:35:43 PM EST
    in which Roe was appealed...by 1967, 49 states and DC classified abortion as a felony...and 42 of those states provided for various exceptions (e.g. rape, incest, illness, and so forth).

    The states had already stepped in to declare abortion illegal for most cases.

    One way to start challenging those laws is through the legal/appeal process showing the unconstitutionality of the laws.


    Oh, I know. (none / 0) (#25)
    by Pegasus on Sun Sep 14, 2008 at 10:51:28 PM EST
    I'm happy that Roe was decided as it was, and I'll do everything I can in my life to see that it isn't overturned.

    But when people point at it as an instance of judicial activism, when the courts stepped in and made a political decision they shouldn't really be making from a POV of judicial restraint, I can at least see their point.

    What makes me nervous, then, in how easily a conservative majority could step in and undo Roe by saying the Roe court got the state interest trigger wrong.  In terms of SCOTUS reversing itself, something like that would be unremarkable (even though as a policy matter it would be catastrophic).  It's happened in both directions.  Twombly, Lawrence... the list goes on.  Court holdings on legitimate state interest are not historically durable.

    So when people say we should try to build new legal walls around a woman's right to choose, I'm listening.


    No you are not (none / 0) (#62)
    by Big Tent Democrat on Mon Sep 15, 2008 at 06:48:47 AM EST
    Everything you have written has shown you to be anti-Roe.

    Please be honest.


    I haven't been a bit dishonest here. (none / 0) (#70)
    by Pegasus on Mon Sep 15, 2008 at 11:05:38 AM EST
    I haven't made a single statement indicating that I think Roe should be overturned, which I assume is what you mean by "anti-Roe."  I haven't made such statements because I in fact don't believe that.

    All I've said in the two posts was that 1) Sunstein's position is demonstrably within the mainstream of current legal scholarship and 2) there are non-ridiculous criticisms to be made about Roe as a piece of jurisprudence, which I can acknowledge even though I disagree with almost all of them (I do buy into the criticisms that the right to choose would be better protected via the EPC, just to make that explicit).

    I would hope that we can expect better of you than simply to call people with whom you disagree liars (with no factual basis for the accusation) and move on.


    You are not a devil's advocate (none / 0) (#61)
    by Big Tent Democrat on Mon Sep 15, 2008 at 06:48:05 AM EST
    You are advocating your views. Be honest at least.

    Your love of Roe Rage has become clear to me.


    No, you're wrong. (none / 0) (#65)
    by Pegasus on Mon Sep 15, 2008 at 08:15:04 AM EST
    I think there's a reasonable argument to be made that it was bad jurisprudence.  I disagree with that argument.  And I'll take bad jurisprudence any day of the week, at any rate, in exchange for the policy outcome of Roe.

    I'd hope you can argue against my points without devolving into, essentially, name-calling.


    Thumbs down (none / 0) (#24)
    by GV on Sun Sep 14, 2008 at 10:47:43 PM EST
    I'm not sure I follow your reasoning at all.  It is uncontroversial that the "right to privacy" was not made up in Roe.  That's not Sunstein's point at all.  Rather, his point is that it's not clear that a "right to privacy" (even if it exists) should protect the right to make decisions about abortion.  (What, exactly, does the "right to privacy" have to do with electing to have an abortion?)  In short, Roe was not a smooth transition from prior precedent.  The concept of the right to privacy borders on the meaningless since there's lots of activities that burden our privacy that no one would think infringes the right to privacy.  (Should the right to privacy mean I have a right to own a gun in my home?  Use heroine?)  

    Look at the "reasoning" offered by Roe.  It merely establishes that sometimes the court has protected our ability to make important decisions.  But there is no coherent framework for when the Court believes something infringes a right to privacy and when something doesn't.  What sort of decisions are protected by the right to privacy?  The court provides no usable framework to answer that question in future cases.  This is exactly why Sunstein's views on abortion are fairly mainstream for legal academics, even those that support the right to an abortion.  

    Finally, it should be worth noting that Sunstein has elsewhere citing approvingly to Justice Ginsburg's gender equality defense of the Court's abortion jurisprudence.  See, e.g., http://articles.latimes.com/2007/apr/20/opinion/oe-sunstein20.  

    I dunno (5.00 / 1) (#27)
    by Steve M on Sun Sep 14, 2008 at 11:05:40 PM EST
    You really don't get what abortion has to do with the right to privacy?  Perhaps you should examine some of the precedents dealing with one's right to make family and medical decisions without government interference.  Do you know many people for whom the abortion decision was not intensely private?

    The framework utilized in Roe is no more or less murky than it was when the exact same framework was utilized in prior privacy decisions.  I confess, I do not have an exact list of which rights are implicit in the concept of ordered liberty; but then again, a heck of a lot of judicially-created tests require future interpretation.  It's not often that the Supreme Court sets forth a rule, on any subject, that resolves an entire category of issues without the need for any future decisionmaking whatsoever.


    Abortion is an intensely private decison (none / 0) (#28)
    by GV on Sun Sep 14, 2008 at 11:21:32 PM EST
    I can count on one hand the number of "family and medical decisions" the Court has protected via the right to privacy once you separate out its abortion jurisprudence.  And while the decision to have an abortion is no doubt "intensely private," there's lots of "intensely private" decisions we do not protect.  At the end of the day, we can all think of lots of medical/family decisions that are "intensely private" that the Court does not protect.  The most prominent example is, of course, the right to make end of life decisions.  

    I can conceive of a link between the right to an abortion and the concept of privacy.  But I can conceive of a similarly "tight" link between lots of other activities and privacy that I suspect that we would all agree should not be protected.  For example, if I said I wanted to drown my two-year old infant in my home because he had downs syndrome, that in some sense deals with my privacy -- both in terms of privacy of physical space (it would take place in my home) and in terms of the non-spatial aspects of privacy (making a very personal decisions).  Yet, that activity is not protected by a "right to privacy."  None of us think it should be.    

    The question becomes then, How do you separate out the activities the right of privacy protects from the activities not covered?  The Court in Roe drew no clear line and didn't even attempt to distill one from prior cases.  In that sense, it was not a well supported decision and appears to be much closer to naked policy making as opposed to extending prior precedents to reach a result.  


    Oh (3.50 / 2) (#34)
    by Steve M on Mon Sep 15, 2008 at 12:32:36 AM EST
    Originally you said Roe didn't follow from precedent.  Now you say you can count the relevant precedents on one hand.  Tell you what, why don't you read BTD's post so at least you'll have to use the second hand.  And then let me know how many Supreme Court precedents there need to be before you will accept that the Court didn't just make it up out of nowhere.

    I really doubt there's much I can say to a person who can't imagine how the decision whether to carry a pregnancy to term is anything like the previously-recognized right to privacy in deciding whether to use birth control, but at the same time can't see any principled distinction between the right to an abortion and the right to murder your 2-year old.


    I think we can all see now (5.00 / 1) (#55)
    by Big Tent Democrat on Mon Sep 15, 2008 at 06:39:37 AM EST
    without a shadow of a doubt that Roe Rage is what drives the discussion, and not just in this thread, of Roe. Sunstein acts as clueless as this fellow.

    "Trolling is not tolerated here." (none / 0) (#37)
    by GV on Mon Sep 15, 2008 at 12:40:06 AM EST
    Wow Steve, you nailed me.  I did in fact say that there's no principled distinction between the right to an abortion and the right to murder a two-year old.  I'll just take my ball and go home.  Oh, wait.  I never said that.  

    Try re-reading what I wrote.  


    What you said (none / 0) (#48)
    by Steve M on Mon Sep 15, 2008 at 12:55:30 AM EST
    is that the Roe decision provides no basis for distinguishing between an abortion and the murder of a 2-year old.

    For example, if I said I wanted to drown my two-year old infant in my home because he had downs syndrome, that in some sense deals with my privacy -- both in terms of privacy of physical space (it would take place in my home) and in terms of the non-spatial aspects of privacy (making a very personal decisions).  Yet, that activity is not protected by a "right to privacy."  None of us think it should be.    

    The question becomes then, How do you separate out the activities the right of privacy protects from the activities not covered?  The Court in Roe drew no clear line and didn't even attempt to distill one from prior cases.

    Your words.  If you want your argument to be taken seriously, try making a serious argument.


    Against my better judgment (none / 0) (#51)
    by GV on Mon Sep 15, 2008 at 01:23:25 AM EST
    I'll assume, probably incorrectly, that you want to have a serious discussion as opposed to merely lobbing snarks at me.

    The concept of a right to privacy alone cannot let you distinguish between murder and abortion (and a near infinite other acts).  Lots of things involve "privacy."  We don't think all of these things should trigger the right to privacy.  Simply put, while there's an obvious distinction between abortion and committing murder, that distinction has nothing to do with the concept of "privacy."  Both can involve privacy.  As I've said repeatedly, we can all think of lots of things that involve privacy in some respect that we would not think you have a right to do.  Murder in your home is just an easy example.  

    You think the right to privacy should be narrowed so as not to include situations involving the death of another person.  There's lots of other limits we would want to put on the right, so the right to privacy really becomes meaningless.  It's no longer the "right to privacy," but rather the right to privacy unless a, b, c, d, etc. are met.  The "right of privacy" is far too broad to be a meaningful legal concept, and the connection between privacy and making decisions about abortion is too attenuated.  As I mentioned before, this is likely why the Court in Lawrence finally stopped talking about a broad, malleable right to privacy and focused in on a right to make decisions about private, adult, consensual intimacy.  That sort of right is well defined and you can easily determine whether conduct falls or doesn't fall under it.  


    It is difficult to have a serious discussion (none / 0) (#57)
    by Big Tent Democrat on Mon Sep 15, 2008 at 06:42:11 AM EST
    with you is Steve's point.

    I suggest you reread the Roe decision because it explains why it distinguishes between them.

    BTW, read Casey to while you are at it.


    Whats the difference? (none / 0) (#39)
    by Fen on Mon Sep 15, 2008 at 12:45:39 AM EST
    We don't know with certainty when a fetus becomes "human", so how can you distinguish between abortion and murder of two-year old?

    Among other things, dependency (none / 0) (#44)
    by GV on Mon Sep 15, 2008 at 12:50:59 AM EST
    While we might not be able to draw a distinction between abortion and the murder of a two-year old solely using the concept of "privacy," it's not very difficult to distinguish between a fetus (entirely dependent on the mother for life) and a two-year old (who is not).  There's seems to be a pretty clear distinction between a fetus and a baby, even a baby only moments old.  

    Thats contradictory (none / 0) (#50)
    by Fen on Mon Sep 15, 2008 at 12:58:04 AM EST
    Some are born pre-mature and are dependent on hospital staff to survive. Others that aren't born premature still require medical attention for an extended time.

    Your argument would damn any child that was entirely dependent on the mother OR her caregivers after birth.



    Some are born (5.00 / 1) (#64)
    by Big Tent Democrat on Mon Sep 15, 2008 at 06:57:21 AM EST
    Once born, they are alive.

    IF you do not see that as a distinction, then that is your right.

    Most of us disagree. The Court disagreed with you in Roe and Casey.

    The point of this post is not to convince you that Roe is right but to beat back the pernicious arguments of the Cass Sunsteins of the world who pretend to be progressive when in fact they are as conservative on Roe as you are.


    No, it's not (none / 0) (#52)
    by GV on Mon Sep 15, 2008 at 01:25:26 AM EST
    No one is forcing the hospital staff to do anything.  It's their chosen job.  If a woman wants to stop caring for her child post-birth, there are other options.  Pre-birth is a different story since the child is dependent solely on her.  

    You really can't? (none / 0) (#56)
    by Big Tent Democrat on Mon Sep 15, 2008 at 06:40:27 AM EST
    At any rate, you at least identify the conservative view of things on this.

    Either you didn't read the (none / 0) (#29)
    by tree on Sun Sep 14, 2008 at 11:57:15 PM EST
    excerpt of the decision that BTD posted here, or you don't know enough about legal decisions to understand. No offense intended with that remark, but its apparent from the excerpts that the court laid out the competing right to privacy and the state's interest in preserving life. Your comment about your "right to privacy to drown" your two year old son clearly indicates that you don't understand or didn't read the decisions reasoning on when in the pregnancy the state's interest can supercede the right to privacy and when the state  can impose limits.  

    Re (none / 0) (#30)
    by GV on Mon Sep 15, 2008 at 12:06:45 AM EST
    I both read the excerpt (and have read the opinion in full) and think as a lawyer I'm qualified to comprehend "legal decisions."  

    The right to privacy is, of course, weighed against the purported state interest.  But I don't think anyone would say that the right to privacy does in fact encompass decisions about drowning my child, but the state's interest simply outweighs my right.  Rather, we would all --- or so I would think -- state that the right to privacy doesn't cover such activity.  Period.  There's no need to go to the balancing test.  To believe to the contrary would mean that I do in fact have a "right" to drown my child (even though I ultimately could be sent to prison for doing so).


    And when you create (5.00 / 1) (#59)
    by Big Tent Democrat on Mon Sep 15, 2008 at 06:46:15 AM EST
    ridiculous hypotheticals, what is there to say to you?

    Drowning a two your old is murder according to Roe.

    And indeed, late term abortions can be banned under Roe with exceptions for the women's health.

    You believe life begins at conception and that should be the law. Roe disagrees with you.

    There is little to discuss with you. Your position is principled. So is Roe.


    a better analogy is .... (none / 0) (#42)
    by Jeralyn on Mon Sep 15, 2008 at 12:48:57 AM EST
    those who would oppose abortion as murder should also oppose the death penalty which is state-sanctioned murder.

    That doesn't follow (none / 0) (#45)
    by Fen on Mon Sep 15, 2008 at 12:52:39 AM EST
    I'm against the death penalty b/c I don't trust the State with such power

    BUT, the perp has committed a crime that is punishable by death, what crime has the child committed? Apples and oranges


    Your point would be better made (none / 0) (#31)
    by Pegasus on Mon Sep 15, 2008 at 12:08:55 AM EST
    without the analogy to murder, I think.  It's impossible to argue that a right to privacy applies to a decision that directly affects another (non-consenting) human being.

    I roughly agree with your last paragraph, though, in that the court didn't do nearly enough to establish a precedential basis for including abortion among the fundamental rights.  I do think they were within their role as I see it (constitutional principles should be applied to novel circumstances without waiting for legislatures, etc., and the viability standard is a very practical one).  I do not think they succeeded in laying out an ironclad doctrine, though.


    Right of privacy (none / 0) (#33)
    by GV on Mon Sep 15, 2008 at 12:19:38 AM EST
    But the act of murder in your home isn't distinguishable from a true, general "right to privacy."  There's nothing inherent in the concept of "privacy" that requires you to graft on the idea of consent.  You're right that you could graft on such a requirement to limit the right.  The "right" would become the "right to privacy as long as the consent of another isn't vitiated."  But that's not what the court has done.  Rather, all of the limiting work (once we agree the right is invoked) is with the state's interest.  The "right" has never been coherently limited.  This is likely why the Court in Lawrence simply abandoned the idea of a general right to privacy altogether for the right to make decisions about private, adult, consensual intimacy.  

    The concept is simple (none / 0) (#63)
    by Big Tent Democrat on Mon Sep 15, 2008 at 06:54:44 AM EST
    Let's try again. You balance the state's interest with the right to privacy. Under strict scrutiny,  applied to fundamental rights, like the right to privacy, the state must have a compelling interest to impinge on the privacy right.

    Roe holds that the compelling state interest emerges at viability.

    Obviously a live person is beyond viability and is actually alive. Clearly then your right to privacy to commit murder in your home  cedes to the state's compelling interest regarding the preservation of life.

    But look, if you REALLY needed this explained to you, you have bigger problems than this.


    not quite true (none / 0) (#40)
    by Jeralyn on Mon Sep 15, 2008 at 12:46:39 AM EST
    See the case TChris won this week that I wrote about here.

    Police who videotaped a man having sex with his comatose wife in her nursing home room violated his constitutional rights, an appeals court ruled Thursday.

    David W. Johnson, 59, had an expectation to privacy when he visited his wife, a stroke victim, at Divine Savior Nursing Home in Portage, the District 4 Court of Appeals ruled. Therefore, police violated his Fourth Amendment rights against unreasonable searches when they installed a hidden video camera in the room, the court said.

    Not clear (none / 0) (#46)
    by GV on Mon Sep 15, 2008 at 12:53:11 AM EST
    Not sure why you think that case makes what I say "not quite true."  Care to elaborate?  

    Minimalism at its worst (none / 0) (#58)
    by Big Tent Democrat on Mon Sep 15, 2008 at 06:43:56 AM EST
    At least I can see now where you are coming from - you are a conservative on the judicial role when it comes to privacy and liberty.

    Certainly your right, but as a Democrat and a progressive, I hope you can see why you are not what we would want making policy for a Democratic Administration,


    What?? (none / 0) (#66)
    by Pegasus on Mon Sep 15, 2008 at 08:18:43 AM EST
    Did you read that closely enough?

    I do think they were within their role as I see it (constitutional principles should be applied to novel circumstances without waiting for legislatures, etc., and the viability standard is a very practical one).

    That's minimalism now?  And "at it's worst" no less?  C'mon.  You're so eager to tar me with a particular brush that you aren't even reading what I'm saying.


    Agreed. (none / 0) (#26)
    by Pegasus on Sun Sep 14, 2008 at 11:01:20 PM EST
    BTD's idea that this is all about the right to privacy is where I'm seeing a problem here.  Privacy rights existed before Roe and would exist after it -- there are Roberts' words upthread somewhere to demonstrate that.

    The weakness in Roe isn't its reliance on the right to privacy, it's its application of strict scrutiny.  That leaves it wide open to attacks with which I'd rather not contend.


    right is your beef? Wow! Just wow!

    And you claim to not be a conservative?


    Weakness is in where (none / 0) (#67)
    by Pegasus on Mon Sep 15, 2008 at 08:21:47 AM EST
    they found the compelling interest of the state to begin, yes.  I agree with their findings (I guess I have to bold this stuff so you don't miss it) in that I think their viability standard makes sense.  But, since they didn't base that standard on precedent in any meaningful way, it could be revised very easily by a more conservative court, who would would then find a different result to be "mandatory."

    Roe's a good decision, but it's also a weak one.  That's really been my whole point here.


    Problems with Roe (none / 0) (#32)
    by AlSmith on Mon Sep 15, 2008 at 12:17:21 AM EST
    - it tires to claim that abortion restrictions were enacted based on the unsafeness of the existing  procedures. Ridiculous.

    -the pseudo-naive references historical prescient of "quickening" arguments in the middle ages. Obviously scholars then had to ability to see inside the mother, so they reasoned from the only information they had which was the first detection of life which was "quickening". Its obvious to us today and from sonograms what to call any particular phase 'quickening' is arbitrary.

    • "conception is a 'process' over time" is a silly statement in terms of the time frames we are talking about with abortions.

    • It discovers the privacy right which the court admits the Constitution does not mention explicitly, but then is apparently flummoxed in Section IX that "the Constitution does not define person in some many words" and that citizen is only references "post-natally". Where is the expansive imagination that was involved in finding a privacy right now? Now the court are literalists.

    • "All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn" Sorry but this logic makes no sense to me. The court had just given a review of common law and American law demonstrating that abortion was a crime. It was "freer" in the sense that it had a distinction for quickening that was antiquated 150 years before the court's ruling. At the time of the 14th amendment, and the framing of the Constitution, abortion has generally been illegal. The only thing Blackmun can hang his hat on in saying "abortion was viewed with less disfavor" is that the lack of prenatal testing made guess work of everything and "quickening" was essentially the only external test.

    -Roe is in some way the worst of both worlds. It does not enshrine "a woman right to choose" but rather "privacy right involved, therefore, cannot be said to be absolute". Could people be compelled to get an HPV vaccine in the future? Who knows? After Kelo, I am suspect about what "state interest" might be construed to mean.

    - Section X is is nearly irrational. "We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, ... and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes "compelling."
    Why does either interest grow? It seems to me that the State's interest in the health and well-being of the mother should be static. Why would the state be more or less interested at any point? This seems to be inserted only for some symmetry to the trimester discussion that follows. Why does the States interest in the "potentiality of human life" increase? If this some argument of a sliding scale of person hood, note that this is the first time this had ever been mentioned! Previously the court had enumerated various theories of when life begins (although "at birth" is frankly pointlessly mentioned) historically without endorsing any. Why is the State's interests any more compelling with viability? This is left unargued as far as I can see.

    I dont bring this to have the pointless abortion argument, but because counter wot what you have claimed, I thin that Roe is not just poorly written it is poorly reasoned. In reality, no one seems to have been persuaded by this hash of a judgement.

    Hm (none / 0) (#36)
    by Steve M on Mon Sep 15, 2008 at 12:35:47 AM EST
    The interest in safeguarding potential life doesn't get any greater as the potential life moves closer to become actual life?  The State's interest in protecting an embryo strikes you as the same as its interest in protecting a ninth-month fetus?  I find that hard to believe.

    viability (none / 0) (#53)
    by AlSmith on Mon Sep 15, 2008 at 02:15:41 AM EST

    what about viability outside of the womb = compelling interest. If that rationale was in the decision I missed it.

    Also your statement presume that the embryo increases in person hood during gestation. That is not an argument was being made by the majority. The referenced historical 'models' in section IX and X are all about 'life' being binary criterion.


    Sheesh (none / 0) (#54)
    by Big Tent Democrat on Mon Sep 15, 2008 at 06:37:48 AM EST
    You missed that? Wow. There is not much more I can do for you then.

    BTD, (none / 0) (#35)
    by Robot Porter on Mon Sep 15, 2008 at 12:33:09 AM EST
    thanks for posting this.

    But, frankly, I think there is no longer any excuse for politically active people to claim ignorance on the major SCOTUS decisions.

    They're available online.  They are understandable to a curious layman. And if you're confused there are countless people to ask.

    If you think you have the ability to read and intelligently respond on a blog. You should also have the ability to read and understand SCOTUS decisions.

    One also (none / 0) (#69)
    by Andy08 on Mon Sep 15, 2008 at 10:30:57 AM EST
    needs to take into account the Supreme Court decision on Planned Parenthood versus Casey -which cemented important aspects of Roe beyond "stare decisis" (BTW the case was written by Sandra Day O'Connor)