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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Thursday, July 28, 2005

What Roe v. Wade Should Have Said

What Roe Should Have Said is a collection of eleven opinions, led by the editor/Chief Justice, Jack Balkin, that uses resources available at the time to re-write Roe v. Wade. Three dissent overall, one on precedent/judicial restraint grounds (Jeffrey Rosen), two particularly concerned with the life of the unborn.

The pro-life woman somehow claimed that feminists on the whole in the late 19th century opposed abortion and the practice is basically anti-family (except, I guess, when it is necessary to secure it such as when a child would overwhelm things, perhaps because one or more of the members are ill etc.). The primary pro-life dissent takes the over the top Justice Scalia sarcastic approach -- is this required for conservative legal minds? Rosen misstated precedent repeatedly, including ignoring that Griswold involved the sale (if for use) of contraceptives.

One (Akhil Amar) dissents in Doe v. Bolton, the companion case covering a more recent "reform" law that allowed abortion in limited situations with various restrictions, while deciding Texas would basically have to perform a "do over" of their 19th Century law, passed before women had a right to vote. Amar, as well as the others who agreed with his basic point, was patently wrong on two basic grounds.

(1) The failure even note the evidence that "due process of law" has substantive content arising from basic principles of justice ("law of the land" aka "common law"), and its history reflects the fact. (2) The 14th Amendment in some important fact protects basic anti-slavery principles, a core one of which was self-control of black families. (I might add security of one's health, but this is even more fundamental and to point.)

Slavery consisted of the rape of women and breaking apart of family life. Amar put forth a creative reading of the 19th Amendment, but TOTALLY ignores this fact. As does the sarcastic pro-life opinion that appears to think that Dred Scott was the best reed for substantive due process to stand on. Not true. A slew of cases, including Palko v. Connecticut broadly spoke of rights necessary to "ordered liberty." In fact, Justice Taney basically rested on the view that the Constitution, not some general principle of liberty, protected slavery -- in part on original understanding.

In fact, though concerns for judicial restraint (which in some fashion was a constant thread, even in the majority opinions) are totally appropriate (Roe did too much at once), the dissents were remarkably unconvincing. Yes, various comments had a reasonable basis, including that substantive due process as applied here was somewhat spottily secured (in part because it was so fundamental that society did not invade the rights at hand -- to some degree, including in respect to eugenics, the courts should have done more), but they protested too much.

Their contempt for the majority (the pro-life woman professor more of a note of sadness and tragedy) would have been easier to take if the reasoning offered was better applied. The majority opinions did not really answer the dissents, which is a pity, but answer they could. For instance, I love the idea by Justice Paulsen that apparently the majority (except perhaps one) did not know they had to interpret the Constitution, thus requiring a few pages of infantile review to remind them. Such people do what they excuse others of: having contempt of those with whom they disagree.

To round off the majority opinions. One, who was Justice Marshall's clerk when Roe was decided, basically offered Justice Douglas' concurrence. Another, Cass Sunstein, briefly noted both laws were overbroad. Of the remainder, fully three in some fashion (ala Furman v. Georgia, also decided about that time) would toss things back to the states or Congress (this one had little respect for the privacy argument as well).

They also focused on equal protection, though the two fully respected the privacy argument. Good point: one cannot be forced to be a labor or a mother. Only one really went beyond Roe, or at least as far, recognizing the importance of a full fledged right of women to control their bodies, a right the exists even if the government ignores its importance.

The equal protection argument, which Rosen belittled (somehow harm of a class consisting totally of women is a hard sell as an sex discrimination issue -- underlining his narrow view of constitutional rights), is sound but would not have worked given the time. OTOH, and this is a useful point to end on, if the Court did take it slower, such an argument might have developed over time along with the privacy argument -- which as Jed Rubenfeld and Anita Allen notes is a quite fundamental one.

So, though I think the right to abortion grounded in constitutional principles, I might have taken the Cass Sunstein approach, along with one that would send things back to the states. Over time, my approach would probably reflect Allen's, but doing so all at once was ill-advised. Cf. Lawrence v. Texas, which waited to simply hold that sodomy could not be illegal, and is allowing things to develop.