It Was 40 Years Ago Today: Roe v. Wade

It is all the fashion these days to criticize the opinion in Roe v. Wade (and the companion case, Doe v. Bolton), which 40 years ago today guaranteed a women's constitutional right to privacy with regard to pregnancy.

While neanderthals like Andrew Sullivan label Roe the "the worst decision ever made by the Supreme Court" (Dred Scott? Plessy? Dagenhart? Korematsu? Bush v. Gore?), even intelligent individuals like Jack Balkin and the Yale Law School crowd have argued that Roe was poorly reasoned, if correctly decided.

I come here today to defend the opinion in Roe, which, while not the most articulate of opinions, still holds up as an exercise of reasoned judicial decision making. Read why I think so on the flip.

I assume familiarity with the facts (and if not familiar, they are set out in the opinion.) I will concentrate my arguments on the reasoning to reach a decision. In Roe, Justice Blackmun (whose meandering opinion, especially on medical matters, appears to stem from his experience as counsel for the Mayo Clinic), explained:

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 [p153] (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and childrearing 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. [Emphasis supplied.]

If we read nothing more of the Roe decision, I wonder that anyone would find this reasoning remarkable in the least. Who can deny that, once you accept a right to privacy, that this right extends to a women's control of her body during pregnancy?

Absent denying the existence of a right to privacy, it seems to me inarguable that women's right to privacy must necessarily extend to control of her body, especially during pregnancy.

Interestingly, some, and not just the late Robert Bork, would deny the existence of a constitutionally guaranteed right to privacy. See, for example, Jeffrey Rosen:

Jeffrey Rosen dissents from both Roe and Doe. Like Sunstein, Rosen also focuses on the Court’s proper institutional role, but he argues that the question of abortion rights should be left to legislatures. He takes up many of the arguments made against Roe by John Hart Ely in a famous law review article in 1973. In Rosen’s view, the Court should have stayed out of controversial questions like abortion, because the right to privacy has no basis in the constitution’s text, structure, and history, and the Court’s previous precedents do not require extension of the right to privacy to abortion. Instead of holding that abortion was constitutionally protected, the Court should have allowed the political process to work out the issue of abortion rights. [Emphasis supplied]

I do not find Rosen's argument persuasive, but I think it is a necessary argument for critics of Roe. Rosen, to his credit, understands this.

Other critiques focus on the Roe court's failure to consider an equal protection argument. Riva Seigel argued:

the proper basis of the abortion right is women’s equality, and that the Court’s heightened scrutiny for laws imposing sex discrimination should have begun with Roe v. Wade. Abortion is a constitutional right necessary to secure women’s equal citizenship. Siegel argues that exemptions in abortion statutes like those in Roe and Doe demonstrate, often in quite telling ways, that abortion restrictions are deeply tied to stereotypical views about the sexes and about the duties of women: “Whatever respect for unborn life abortion laws express,” Siegel notes, “state criminal laws have never valued unborn life in the way they value born life.” Instead, states “have used the criminal law to coerce and intimidate women into performing the work of motherhood.” “Abortion laws do not treat women as murderers, but as mothers: citizens who exist for the purpose of rearing children; citizens who are expected to perform the work of parenting as dependents and nonparticipants in the citizenship activities in which men are engaged.” Siegel bases her opinion on the equality arguments offered in amicus briefs submitted to the Supreme Court by various women’s groups. These briefs grounded the abortion right in what we would today call an antisubordination model of equality law. Siegel’s answer to what Roe should have said is to give voice to the lawyers who were part of the legal vanguard of the second wave of American feminism, and whose arguments were largely ignored by the courts.

This is an interesting argument, but, to my way of thinking, not a fair criticism of the Roe opinion. Seigel asks the Court to reach beyond the contours of the equal protection jurisprudence of 1973 (perhaps even of today) and recognize an formulation of equal rights for women that was not recognized in 1973 and maybe, not even today. These are aspirational arguments, but in my view, not a fair basis for criticism of Roe.

Many, like Mark Tushnet, prefer Justice Douglas' formulation of the issue:

Third is the freedom to care for one's health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf. These rights, though fundamental, are likewise subject to regulation on a showing of "compelling state interest." [cases omitted]

The Georgia statute is at war with the clear message of these cases -- that a woman is free to make the basic decision whether to bear an unwanted child. Elaborate argument is hardly necessary to demonstrate that childbirth may deprive a woman of her preferred lifestyle and force upon her a radically different and undesired future. For example, rejected applicants under the Georgia statute are required to endure the discomforts of pregnancy; to incur the pain, higher mortality rate, and after-effects of childbirth; to abandon educational plans; to sustain loss of income; to forgo the satisfactions of careers; to tax further mental and physical health in providing child care; and, in some cases, to bear the lifelong stigma of unwed motherhood, a badge which may haunt, if not deter, later legitimate family relationships.

I like this argument as far as it goes, but, I disagree with the idea that there must be a showing of hardship to recognize the right. This does smack of what later becomes the "undue burden" test adopted in Planned Parenthood v. Casey.

Indeed, it is this mindset that informs the question presented regarding when the state can impinge on the right to privacy. Justice Douglas wrote:

Such reasoning is, however, only the beginning of the problem. The State has interests to protect. Vaccinations to prevent epidemics are one example, as Jacobson, supra, holds. The Court held that compulsory sterilization of imbeciles afflicted with hereditary forms of insanity or imbecility is another. Buck v. Bell, 274 U.S. 200. Abortion affects another. While childbirth endangers the lives of some women, voluntary abortion at any time and place regardless of medical standards would impinge on a rightful concern of society. The woman's health is part of that concern; as is the life of the fetus after quickening. These concerns justify the State in treating the procedure as a medical one. [Emphasis supplied.]

Let's repeat that - "voluntary abortion at any time and place regardless of medical standards would impinge on a rightful concern of society." What rightful concern is that one might ask? Justice Douglas does not bother.

Justice Blackmun's Roe opinion is much the superior on this critical point:

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. [...] 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. [...] 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. [Emphasis supplied.]

It is from this reasoning that the much maligned "trimester structure" of Roe springs:

The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus. See Dorland's Illustrated Medical Dictionary 478-479, 547 (24th ed.1965). [...] As we have intimated above, it is reasonable and appropriate for a State to decide that, at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly.

[...] Physician[s] and their scientific colleagues have regarded that event [quickening] with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes "viable," that is, potentially able to live outside the mother's womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks. [Emphasis supplied.]

Thus the trimester structure:

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. (b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. (c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

It doesn't sing does it? But it is reasonable and rational and frankly, the most compelling structure on offer.

We all admire elegant writing. We all bemoan the fact that judicial opinions are not often written in styles we admire. Certainly there is nothing graceful about Justice Blackmun's Roe opinion.

But I have yet to see a compelling argument that the reasoning is not sound. Moreover, I have yet to see an offer of reasoning that is better than Roe could have been in 1973. Remember what Supreme Court judicial reasoning really amounts to, as Justice Brennan famously said - counting to 5.

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    The Really Good News (5.00 / 1) (#1)
    by ScottW714 on Tue Jan 22, 2013 at 02:05:45 PM EST
    As the 40th anniversary of the Roe v. Wade Supreme Court decision takes place on Tuesday, a majority of Americans - for the first time - believe abortion should be legal in all or most cases, according to a new NBC News/Wall Street Journal poll.

    What's more, seven in 10 respondents oppose Roe v. Wade being overturned, which is the highest percentage on this question since 1989.

    "These are profound changes," says Republican pollster Bill McInturff, who conducted this survey with Democratic pollster Peter D. Hart and his colleagues.

    According to the poll, 54 percent of adults say that abortion should be legal either always or most of the time, while a combined 44 percent said it should be illegal - either with or without exceptions.


    The not-so-good-news (none / 0) (#3)
    by jbindc on Tue Jan 22, 2013 at 02:54:28 PM EST
    Is how many "young people" have no idea what Roe is about:

    A poll by the Pew Research Center released last week found that over the past two decades, opinion on whether or not Roe should be overturned has barely changed. In 1992, 60 percent of those asked said the court should not overturn the ruling. Today that's up to 63 percent.

    Perhaps more troubling for those on both sides of the debate, however, is that the older the ruling gets, the less young people appear to know about it. Among those younger than 30, only 44 percent polled knew the case was about abortion; 16 percent thought it had to do with school desegregation.

    Is that about how many can identify the case (5.00 / 2) (#4)
    by Peter G on Tue Jan 22, 2013 at 03:20:54 PM EST
    by its name?  Who cares?  The issue is whether young people understand, at some level, the principle that is involved -- that the government cannot, by law, prohibit a woman from making her own choice whether to continue or terminate a pregnancy, at least during the first six months or so -- and when they do understand it, whether they say they support that principle.

    There's really an entire generation of (5.00 / 2) (#5)
    by Anne on Tue Jan 22, 2013 at 03:21:47 PM EST
    women who - depending in part on where they live - have never known anything but the fact that their bodies are pretty much their own, and their right to an abortion fairly broad; it's a given for them.

    That being said, I would think it might be hard not to have been aware of the ongoing assault on abortion rights by GOP-led states and legislatures, but this may be one of those things that doesn't come to someone's attention unless and until it affects them in some direct way.  


    Good points all (5.00 / 3) (#6)
    by shoephone on Tue Jan 22, 2013 at 03:48:12 PM EST
    The mere fact that so many young women don't know the history of the decision because it's a right they have always enjoyed, and therefore, one they have been allowed to take for granted, speaks directly to your final point:

    but this may be one of those things that doesn't come to someone's attention unless and until it affects them in some direct way.  

    How many illegal abortions were performed in this country before 1973? Millions. How many of them were botched abortions, leaving many women permanently injured, and leaving many others to die? We'll never know. I suspect it's in the millions also.

    The dozens of laws passed in states like Mississippi, Georgia, Louisiana, etc., which severely curtail the legal right to abortion are happening under the radar. The major news media doesn't cover those stories. We have to look to places like the Guttmacher Institute to get current statistical information.

    Politicians who bend over backwards to placate extremist right wingers and seek to find common ground with Christian terrorists are to be pilloried. I'm no longer of childbearing age, but I will not support any politician who plays games with women's reproductive rights. The last thing we need in this country to go back to seeing illegal or self-induced botched abortions.

    The cruel, senseless death of the woman in Ireland who was denied a lifesaving abortion is already changing that country's policies.


    For an outstanding look at the world before Roe (5.00 / 2) (#10)
    by Peter G on Tue Jan 22, 2013 at 04:01:25 PM EST
    take half an hour to view the documentary "Motherless," now recently made available for free viewing online.

    Thanks Peter (none / 0) (#11)
    by shoephone on Tue Jan 22, 2013 at 04:07:20 PM EST
    An update and reflection (none / 0) (#37)
    by Peter G on Wed Jan 23, 2013 at 09:18:48 AM EST
    from one of the experts (a historian) who appears in the documentary (which was made 20 years ago).

    I've tried and tried (none / 0) (#50)
    by shoephone on Wed Jan 23, 2013 at 05:47:04 PM EST
    but, for some reason, I can't get the video when I click on it. And I've tried in two different browsers. Wondering if maybe it has something to do with me disabling Java two weeks ago? My flash player and other video streaming stuff is up to date.

    It worked for me in Mozilla Firefox (none / 0) (#55)
    by Peter G on Wed Jan 23, 2013 at 07:57:17 PM EST
    with Java disabled, the day before yesterday.  So no, that's not it.  But if you figure it out, please let me know.  I am on the advisory committee for the sponsoring group (which is a project of the ACLU of PA) and we need to hear about any technical difficulties.

    OK, I got it to work! (none / 0) (#57)
    by shoephone on Wed Jan 23, 2013 at 09:38:15 PM EST
    I ended up right clicking on "open" instead of just left clicking and that did it. But then after watching the whole thing, I left clicked and it worked. So, I don't know what the deal was before.

    It's a very well done piece. I liked that it focused on just four families. I have to say, the man -- Mr. Freidl -- was the most emotionally affecting. He still feels such a deep loss, even likening it to "being abandoned by your mother." Very sad. His and the older woman's interviews must have been conducted years ago? Both their mothers died in 1929, and neither of them looks to be in their 80's.

    And the horrors of the methods used. It's so hard to believe that anyone would actually want us to go back to that. And yet... the conservatives are doing their level best to turn back the clock.


    The film was actually first released (none / 0) (#58)
    by Peter G on Wed Jan 23, 2013 at 10:46:32 PM EST
    20 years ago, and has just been re-released.  So yes, the interviews were conducted over 20 years ago.  But Lynn Harwell, the older woman whose mother died of an illegal abortion of her eighth pregnancy in 1929, is indeed still alive, and continues to speak out ... yes, into her late 80s.

    Indeed (5.00 / 2) (#22)
    by Zorba on Tue Jan 22, 2013 at 05:31:36 PM EST
    I am of the pre-Roe v Wade generation.  And although I do not know any women who died as a result of illegal, botched abortions, I do know two who wound up so messed up physiologically that they were unable to bear children in later life, when they desperately wanted to.  
    And yes, they were absolutely desperate when they sought those illegal abortions while they were much, much younger.

    Who Cares (none / 0) (#12)
    by ScottW714 on Tue Jan 22, 2013 at 04:14:28 PM EST
    Does one have to know who James Hutton is to realize the Earth is more than 6,000 year old.  It's what they believe IMO that counts, not if they understand the historic journey it took to reach that point.  

    It matters (5.00 / 4) (#15)
    by jbindc on Tue Jan 22, 2013 at 04:25:08 PM EST
    Because sometimes people base their beliefs on things that aren't true, because they don't know any better.  And then they vote.

    Seriously, you think it's ok for people to act like sheep and say "Oh yeah, I'm for Roe because I like to keep schools desegregated?"

    A great example is found even today - look how many liberal writers and commenters keep giving Obama credit for "guaranteeing women equal pay for equal work" by signing the Lilly Ledbetter Act?  It's not true, of course, as the Act only increases the statute of limitations to bring discrimination suits, and instead gives Obama credit for the Equal Pay Act of 1963, but that doesn't stop people like Eugene Robinson from making that statement.

    Yes, I think it matters that when people have an opinion on things like abortion, they should have a general idea that they are talking about Roe v. Wade (for one).


    Have to say (5.00 / 1) (#20)
    by shoephone on Tue Jan 22, 2013 at 05:17:30 PM EST
    I agree with this. Roe is monumental, as monumental as Brown v. Board and Plessy v. Ferguson.

    Right... (5.00 / 1) (#42)
    by ScottW714 on Wed Jan 23, 2013 at 12:19:16 PM EST
    ...it's important to understand the concept, of course, but come on, do we all need to know the legal cases that brought us stuff like child labor laws, and women and minorities having the right to voter ?  And to be honest, while these are bad analogies, it doesn't matter to me if these were decided in court on legislated, my view is the same regardless of how they came to be.

    Believing a woman has domain over her own body doesn't require understanding what BTD wrote or even knowing who Norma Nelson is.  Believing Roe vs, Wade was about segregation has absolutely no bearing on where you stand any topic.

    I get that people base their views on things that aren't true, but in this case specifically, you aren't arguing the content of the case, you are arguing that someone believing this case was about segregation is incapable of understanding the concept of woman's rights/privacy, which is non-sense.


    so (none / 0) (#44)
    by TeresaInPa on Wed Jan 23, 2013 at 01:50:20 PM EST
    if you are for a woman's right to chose but do not know that RvW is the legal judgement that protects that right might you not make a mistake in the voting booth?  If you know a candidate is for over turning Roe V Wade and you vote for him anyway because you think "I am seriously not worried about schools going back to being segregated", ......  I don't know, I can think of some really good reasons why it is important for people to know what RvW is.

    I think (none / 0) (#48)
    by jbindc on Wed Jan 23, 2013 at 05:16:00 PM EST
    That for all the attention Roe has gotten over the last 40 years, that it would be easier to know a little about this case (like the name and subject) than a lesser known / lesser "hot button" case.

    Fascinating example of the peculiarities of polls (none / 0) (#38)
    by Peter G on Wed Jan 23, 2013 at 09:42:40 AM EST
    According to an editorial in today's Philadelphia Daily News, when asked to identify by name any famous Supreme Court decision of which they are aware, Americans are eight times more likely to mention Roe v. Wade than Brown v. Board of Education. Which of course gives the opposite impression to the no-doubt-equally-accurate statistic that jbindc cites.

    Sarah Weddington to speak tonight (5.00 / 2) (#19)
    by shoephone on Tue Jan 22, 2013 at 05:02:50 PM EST
    at Seattle's Town Hall! Darn, I didn't know about this event and it's already sold out. Weddington is the attorney who successfully argued Roe. Maybe I can quietly crash the party...


    I think you should "crash" the party. (5.00 / 1) (#24)
    by Donald from Hawaii on Tue Jan 22, 2013 at 06:19:50 PM EST
    Any opportunity to spend time in the presence of he actual movers and shakers of our history is one not to be passed by. In 2003, I attended a lecture by Fred Koramatsu, the plaintiff in Koramatsu v. United States, at the University of Hawaii Richardson School of Law. It proved a most fascinating and illuminating experience.

    Well, darn (none / 0) (#31)
    by shoephone on Tue Jan 22, 2013 at 09:06:20 PM EST
    Checked into it further and they really are sold out. And they are being adamant about anyone not already registered online as a ticket holder. Since I live a 35-minute drive from the venue, I'd rather not go and bang my head against the door for nothing. I'll post whatever reports I find tomorrow.

    I'll look forward to it. (none / 0) (#33)
    by Donald from Hawaii on Tue Jan 22, 2013 at 09:23:52 PM EST
    Is it too much to hope that someone might record the event and post it online? I'd love to hear what she has to say.

    I think it's likely (none / 0) (#34)
    by shoephone on Tue Jan 22, 2013 at 09:26:08 PM EST
    it will be recorded, or at least part of it. The Stranger may have excerpts since their reporter interviewed her in advance of the event.

    Another critic (5.00 / 2) (#21)
    by SuzieTampa on Tue Jan 22, 2013 at 05:29:29 PM EST
    In 2005, on his blog Unclaimed Territory, Glenn Greenwald  argued that it wasn't good strategy to oppose Samuel Alito's Supreme Court confirmation because of his dissent in Planned Parenthood v. Casey. Greenwald wrote:
    A law requiring a woman to notify her husband before she can abort her baby (not that she obtain consent of her husband, and not that she notify the father of her baby -- only that she notify her husband, if she has one) -- does not seem that it would greatly offend very many people beyond the hard-core, absolutist pro-choice minority, which is going to oppose Alito no matter what.

    Two months later, he published a list of the 10 worst Americans, compiled by a commenter and himself, although he didn't clarify who suggested whom. He included Supreme Court Justice Harry Blackmun.
    With a single, intellectually flimsy judicial opinion, [he] did more than anyone else to inflame and render irresolvable America's paralyzing and internally destructive culture war.

    Glenn was so very wrong here. (5.00 / 3) (#26)
    by caseyOR on Tue Jan 22, 2013 at 06:59:07 PM EST
    Each woman's situation is different. Glenn has no way of knowing what kind of relationship each and every married couple in the country has. He is in no position to opine on the offensiveness of spousal notification laws.  Suffice to say that not every husband is kind, loving , supportive. And, seriously, why should a woman have to tell anyone about any medical decision she makes about her own care?

    As to this:

    With a single, intellectually flimsy judicial opinion, [he] did more than anyone else to inflame and render irresolvable America's paralyzing and internally destructive culture war.

    Glenn needs to familiarize himself with the hatching of the anti-abortion movement. It did not come about because of deeply held beliefs about abortion. It was a political tactic, nothing more.


    Sometimes I wish Greenwald (5.00 / 3) (#27)
    by shoephone on Tue Jan 22, 2013 at 07:02:33 PM EST
    would stick to what he knows. Abortion and reproductive freedom ain't it.

    I strongly disagree w/Mr, Greenwald, a (5.00 / 4) (#28)
    by oculus on Tue Jan 22, 2013 at 08:02:11 PM EST
    homosexual in a committed relationship, re his opinion mandatory notice to a female's husband prior to her obtaining an abortion imposes de minimus burden.  

    Personally, I subscribe to the views ... (5.00 / 2) (#32)
    by Donald from Hawaii on Tue Jan 22, 2013 at 09:20:04 PM EST
    ... expressed by the late Adm. James Stockdale on the subject of abortion during the 1992 vice presidential debate, in which he succinctly and forthrightly stated, "I believe that a woman owns her body and what she does with it is her own business, period."

    Ergo, as a gay man who argues passionately for his own expectations of equality under the law, Glenn Greenwald is an phuquing idiot for having offered such a hypocritical (and inherently silly) opinion, in which he would potentially compromise a married woman's right to her own reproductive choices in the pursuit of some supposedly superior political strategy.

    Shame on him.


    Greenwald was writing in 2005 (5.00 / 1) (#40)
    by SuzieTampa on Wed Jan 23, 2013 at 10:53:30 AM EST
    Remember that G supported the wars in Iraq and Afghanistan and praised Bush in 2005. He was/is a libertarian who began to criticize Bush for not being a true conservative, and the left adopted him as one of their own.

    If you read his columns in 2005 & 2006, as I've done, you'll find he had all sorts of interesting views, such as thinking that few problems were more pressing than illegal immigration. He attacked Seymour Hirsch, after Hirsch criticized Bush's escalating air strikes. (Hirsch won a Pulitzer Prize for exposing the My Lai Massacre, and later exposed torture at the Abu Ghraib prison.) About Scooter Libby, he wrote: "It is illegal to disclose classified information to individuals who are not cleared to receive it. Period."

    The man who now thinks it was torture for Manning to ever be naked in a jail cell defended Max Hardcore, who had women do things such as eat their own vomit. G argued that if a woman signs a consent form than feminists are being condescending if they question whether women who are filmed struggling, crying and begging might not always realize what would happen to them, or might have consented out of desperation for drugs and/or money.

    I wrote about all of this here and here with links.


    I have less contempt for those who (5.00 / 1) (#43)
    by Anne on Wed Jan 23, 2013 at 12:38:36 PM EST
    supported the wars and the accompanying authoritarian policies when Bush was president, and who now oppose them in Obama's hands and direction, than I do for those who opposed all of that then, but, because we now have a Democratic President and Commander in Chief, have found countless ways to justify, excuse and support them.

    I can't speak for anyone else, but I try to take people's opinions as they come, compare and contrast them with my own, explore information as it becomes available, try to find context in everything, and in general, think for myself.  So, what that means is that, even with respect to people with whom I often find myself in agreement, I still bring my skepticism to the table, and I'm not afraid to disagree.

    Do I agree with Glenn's almost-ten year old opinions, in all cases?  No.  But if I'm allowed to evolve my views, I think he is, too.

    I just found the juxtaposition of the zeal with which you skewered Glenn on his 2005 opinions, against this admission:

    I don't know Greenwald's current views on abortion

    to be somewhat startling.

    When you take the time to have an argument with someone else's nearly decade-old views but seemingly can't be bothered to find out what that person's current views are, I sense agenda and axe-grinding more than I do an interest in reasoned discussion.


    My contempt continues (5.00 / 1) (#49)
    by SuzieTampa on Wed Jan 23, 2013 at 05:23:22 PM EST
    Greenwald's comments on Obama raping a nun and his defense of Max Hardcore and torture porn were last year, not 7 or 8 years ago.

    Anne, just fyi, I dislike Obama. Seven-eight years ago, G was praising Bush for standing up to the media and not firing Rumsfeld and Rove. G criticized Seymour Hirsch for criticizing Bush about air strikes.

    His original criticism of Bush was not that he was authoritarian, but that he wasn't a "true conservative," which he defined as someone who should mistrust government and want as little government interference as possible. My beliefs differ because I think government can sometimes be a force for good.

    My opinion is that G didn't take off as an opinion writer until he began attacking Bush, and progressives embraced him.    

    Before I wrote my blog posts, I searched for G's current position on abortion. As far as I can tell, it hasn't changed much from this: As a good libertarian, he doesn't want government to interfere with a woman getting an abortion, but he has never made abortion rights (or anything that is usually labeled as "women's rights") a priority.

    I read this blog because it's the opposite of G's writing. When Jeralyn disagrees with someone, she doesn't call them vile names, or let others do so. She sources what she says, and if she gets something wrong, she corrects it. She does write hyperbole. I also realize that she would have probably deleted me by now. So, thanks, BTD!  


    Personally, (5.00 / 1) (#56)
    by NYShooter on Wed Jan 23, 2013 at 09:28:33 PM EST
    I've been turned off to Greenwald ever since he assumed the role of Pied Piper of the Pillory Hillary Brigade when she wouldn't submit to the Obama Faithful's demand that she quit the Primary. After all, She was holding up the coronation.    

    Hey (none / 0) (#47)
    by jbindc on Wed Jan 23, 2013 at 05:14:22 PM EST
    When you take the time to have an argument with someone else's nearly decade-old views but seemingly can't be bothered to find out what that person's current views are, I sense agenda and axe-grinding more than I do an interest in reasoned discussion.

    Politicians (and bloggers) do it all the time. We had examples from both sides during this last presidential campaign - digging up comments and actions from when the candidates (one in his 60s and one in his 50s) were in high school, for goodness sake.


    I'm confused (none / 0) (#41)
    by sj on Wed Jan 23, 2013 at 11:49:07 AM EST
    I would think that you be glad that his views have evolved.  Or do you consider it a case of "it can't be un-said"?  Which, btw, I appreciate.  On the other hand, does any folly I exhibited 7 years ago now taint any insight I may have today?

    before roe v wade (5.00 / 5) (#35)
    by Amiss on Tue Jan 22, 2013 at 10:57:20 PM EST
    I had a miscarriage in the first 2 months of a pregnancy. I was hemorrhaging and my husband was out of town. We had to wait on him to get home to sign the papers for a D&C before they would do it.

    I don't wish that on anyone.


    in the 1990s (5.00 / 2) (#36)
    by TeresaInPa on Wed Jan 23, 2013 at 08:15:57 AM EST
    my Sister in Law, because he doctors worked out of a catholic hospital, had to get her husbands permission to get her tubes tied.  Even at that they would not do it right after her last child was born. In fact that is how she had her last child...because they wouldn't do it after her third child.  So we don't regret him, he is a treasure.  But still the interference of men in the reproductive rights of women is infuriating to me.

    Thank you, BTD. Excellent. And (5.00 / 2) (#29)
    by oculus on Tue Jan 22, 2013 at 08:03:17 PM EST
    welcome back.  

    A rarely disputed belief (5.00 / 1) (#39)
    by MyLeftMind on Wed Jan 23, 2013 at 09:59:57 AM EST
    supporting anti-abortion philosophies is that life begins at the moment of fertilisation. Standard birth control that prevents implantation of the egg is therefore considered murder. I personally believe that if God is plunking souls down into people, it's just as likely that every egg we make has its own soul. Or perhaps it happens when the sparks start to fly in the fetus' brain or when the first heartbeat occurs. The  moment in time when a sperm hits an egg is just a tiny step in a very extensive, complicated process of creating new life. When its primary purpose, the merging of genes, can be medically bypassed, will the new beings created not have a soul? Will more people begin to see that an egg itself is life, especially if  scientific advances lead to egg development without external fertilisation?

    I think that many men have a huge issue with the fact that it's women's bodies that create and grow new human beings. Men's role in procreation is a comparatively minor event that dispenses their genes. The desperate desire to keep women into a role of chattel forced to bear children against their will may stem from this insecurity. Hence the ongoing debate over not just abortion but whether or not constitutional privacy can be denied by forcing women to communicate or share reproductive decisions with husbands, parents or any other person not carrying the egg or fetus in their body.

    At some point in the near future we will be able to procreate without sperm, a reproductive process that will be eminently useful in livestock breeding. I call the creation of a fertilized egg using genetic material from another egg "biovavitagenesis,". (New word, pronounced bi-ova-vita-genesis, for two-egg-life-creation, first reported here at TalkLeft!) Not the same thing as cloning since it would combine genetic material from two females. When that option is available for human reproduction, and when our offspring are walking around apparently with regular "souls," perhaps we'll put to rest the misconception that the magical moment that life begins and God blesses the egg with a soul is when a sperm pierces an egg. Of course, given the nearly obsessive patriarchal choke hold on women's reproductive lives, I'm guessing  biovavitagenesis will be promptly banned as soon as it becomes a viable option for human procreation.

    Aren't you affraid (none / 0) (#45)
    by TeresaInPa on Wed Jan 23, 2013 at 02:01:28 PM EST
    that the forces of the he-man girl haters club will come find you and lock you up for saying such things?

    Of course. To both your questions. (none / 0) (#51)
    by MyLeftMind on Wed Jan 23, 2013 at 06:02:41 PM EST
    It costs a lot to keep male farm animals around for breeding. It's expensive to keep otherwise non-productive male livestock alive, especially when they're large animals like cattle or pigs. Not only do they eat a lot, but non-neutered male animals tend to be overly aggressive and destructive. Most farmers buy sperm instead of keeping bulls, bucks & studs around, but the genetic pool is limited because other agricultural businesses harvest the sperm. Given that many farmers are already using AI to breed animals, it's won't be that much of a stretch to switch to female to female genetic blending in agriculture. The gene pool available from female livestock is huge. There's big money to be made with this kind of scientific advancement.

    Regarding the haters coming after me, well, I'll take my chances. I'm already hated by wingers for supporting gay equality and for being unapologetically feminist. On the other hand, I'm despised by liberals for my views that we should make poverty-by-choice VERY uncomfortable (free college, small rooms instead of Section 8 housing, with strict restrictions on nicotine, drug and alcohol use). Even here at TL, I take a beating for supporting legal immigrants over illegal. I guess I'm one of those folks in the middle who take flack from both sides.

    I think it would be great for two women to be able to mingle their genes and create new life. I can't wait to see heads explode over the concept of women not needing men to breed. Every time women take another step away from dependence on men, our relationships become more honest and functional. This technical advance is sure to be another boost to feminist progress...


    ps.... (none / 0) (#46)
    by TeresaInPa on Wed Jan 23, 2013 at 02:03:12 PM EST
    are you serious?  Is such scientific procedure being created?

    Catholic hospital argues fetuses not people (5.00 / 1) (#52)
    by caseyOR on Wed Jan 23, 2013 at 06:15:07 PM EST
    when that argument serves the purpose of the Catholic hospital.

    A Catholic hospital in Colorado is being sued by a man whose wife was brought to the emergency room with breathing problems. She was seven months pregnant with twins. ER staff were unable to find the cause  of her difficulties. Her OB, who was also the OB on call for emergencies, did not answer a page.  The woman and the fetuses died.

    Her husbad has sued the hospital for malpractice. This Catholic hospital's defense?

    But when it came to mounting a defense in the Stodghill case, Catholic Health's lawyers effectively turned the Church directives on their head. Catholic organizations have for decades fought to change federal and state laws that fail to protect "unborn persons," and Catholic Health's lawyers in this case had the chance to set precedent bolstering anti-abortion legal arguments. Instead, they are arguing state law protects doctors from liability concerning unborn fetuses on grounds that those fetuses are not persons with legal rights.

    The hypocrisy is breathtaking. Tell me again why anyone listens to anything the Catholic Church says?

    I was led to the above story by Susie Madrak. (5.00 / 1) (#53)
    by caseyOR on Wed Jan 23, 2013 at 06:17:45 PM EST
    Wow. That is outrageous (none / 0) (#54)
    by shoephone on Wed Jan 23, 2013 at 06:37:06 PM EST
    Seven week zygote = person
    Seven month twins in utero = not persons

    The hospital, as well as the negilgent-didn't-feel-like-answering-his-page OB/GYN will probably hire someone at FOX News to do their PR. And then, hopefully, they will still get reemed inside out in the legal system.


    Very well put, BTD (none / 0) (#2)
    by Peter G on Tue Jan 22, 2013 at 02:44:24 PM EST
    This has been exactly my take on RvW for some years.  I don't really get the criticism of Blackmun's opinion, as a matter of due process/ constitutional privacy law.

    Blackmun (none / 0) (#9)
    by Big Tent Democrat on Tue Jan 22, 2013 at 03:59:10 PM EST
    was a pedestrian opinion writer.

    But that says nothing to the logic of the reasoning.


    Excellent synopsis of opinions, BTD (none / 0) (#7)
    by shoephone on Tue Jan 22, 2013 at 03:51:10 PM EST
    I find Seigel argument compelling, but it seems to be based on political theory more than law.

    It's law based (none / 0) (#8)
    by Big Tent Democrat on Tue Jan 22, 2013 at 03:58:10 PM EST
    in the sense that once 5 justice agree, it becomes the law.

    There were not 5 votes for the proposition in 1973 and I'm not sure there are 5 votes for it now.


    For TL readers who have not studied law ... (none / 0) (#14)
    by Peter G on Tue Jan 22, 2013 at 04:23:56 PM EST
    understand that when BTD says that "five votes" (out of nine Justices) determine "the law," he is expressing a philosophy of law called "realist jurisprudence."  Not all legal philosophers would agree that this is what is meant by "law." But be that as it may, a decision of the Supreme Court is binding authority and precedent on the meaning on whatever statute or constitutional provision it is interpreting or expounding.

    Law in the real sense (none / 0) (#18)
    by Big Tent Democrat on Tue Jan 22, 2013 at 04:57:21 PM EST
    Maybe not in the philosophical sense.

    If the right to privcy really existed... (none / 0) (#13)
    by redwolf on Tue Jan 22, 2013 at 04:22:27 PM EST
    then it would apply to drug use, bestiality porn, law enforcement reading our phones/phone records, searching our cars without a warrant, ect.  As supreme court has not found this same right in regards to any of these areas it's clear that Roe V Wade was about nothing more making abortion legal.  It was a naked Judaical law change dressed up in nice sounding words that doesn't apply anywhere else.  For the record I'm for abortion and the right to privacy, but that second right doesn't exist in our system.

    To say that a right is not absolute (5.00 / 2) (#16)
    by Peter G on Tue Jan 22, 2013 at 04:29:48 PM EST
    is not to say that it doesn't exist or that it is not a right.  We are talking about the scope and extent of the right.  That's why the Supreme Court, after locating a woman's control over her own body and its reproductive capacity as being within the realm of constitutionally protected "privacy," went on to discuss what governmental interests might legitimately be balanced against that right, and when those interests might even outweigh it.  And by the way, what is that you think the word "Judaical" means, assuming that is not a typo?

    And by the way, the right being interpreted (5.00 / 1) (#23)
    by Peter G on Tue Jan 22, 2013 at 05:41:14 PM EST
    and applied in Roe is the guarantee that no person be deprived of her "liberty" without "due process of law." This is the plain language of the Constitution; not some sort of "judge-made law." Obviously the scope of "liberty" is not self-evident (as is, for example, the truth that we are entitled to the enjoyment of it); the concept requires elaboration. (And even if this were not self-evident, the Ninth Amendment says so explicitly.) The Court determined, based on tradition and precedent, that this Constitutional notion of "liberty" included the sort of "privacy" that embraces autonomous decisionmaking about one's own reproduction.  (And "due process of law" in this context encompasses both fair procedures and also the requirement that official limitations be rationally and otherwise sufficiently justified.)  
       And Redwolf, both electronic surveillance and searches of automobiles are regulated by the Constitution as intrusions on "liberty," that is, privacy.  Not banned, but regulated.

    Chief Justice Roberts (none / 0) (#25)
    by MKS on Tue Jan 22, 2013 at 06:21:24 PM EST
    said during his confirmation hearings that he agreed with Substantive Due Process.  

    That, of course, begs a further question ... (none / 0) (#30)
    by Donald from Hawaii on Tue Jan 22, 2013 at 08:45:20 PM EST
    ... regarding the chief justice's own particular views on the doctrine of substantive due process, which might otherwise offer potential opportunities for SCOTUS to interpret government policy through the entirely subjective eyes of some of its judicial beholders.

    Does Roberts believe that members of the Supreme Court enjoy the right to play the role of judicial activists / crusaders in rendering established policy null and void -- regardless of prior rulings or precedents -- if they believe it to be for a good cause?

    If so, then perhaps that might explain how the SCOTUS majority's sweeping Citizens United decision came to undermine a century's worth of campaign finance law in this country, and why Associate Justices Thomas and Scalia could further believe that there's nothing untoward or compromising about their appearances at partisan gatherings sponsored by David and Charles Koch.



    Not into the common law (none / 0) (#17)
    by Big Tent Democrat on Tue Jan 22, 2013 at 04:56:23 PM EST
    I see.