I respond to comments on a National Review discussion of Roe v. Wade here, again simply tired about all the uninformed discussion of the matter, shoddy vitriol [see, e.g., being called a liar by one respondent] being particularly tedious to wade through. Reasoned dispute is not enough; people have to in effect argue it is a slam dunk that the ruling is simply laughable. Consider Justice White's original dissent in Doe v. Bolton, in which he argues:
The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries.
Mere convenience is apparently a significant reason for women to choose abortion. White argues the majority had no basis in its reasoning, ignoring privacy precedents -- some of which he joined -- and lower court rulings on this specific subject deciding the same way. This includes U.S. v. Vuitch (which White joined in relevant part and cites here!) that defined "health" to cover "psychological as well as physical well-being." What abortion does not deal with that? Since the very first words of White's dissent labels the absence of such women at "the heart of the controversy," does he really have a leg to stand on? White's vitriol about giving women the constitutional right to "exterminate" human life (though calling "it") is telling.
As Douglas notes, if you support Griswold (as White did, on grounds if anything broader than the main opinion), why does the right disappear the day after conception? Such a trump of a being not one justice recognized as a constitutional person over the choice of the woman (and her partner, for that matter, since many agree on the decision, and this often this has a special affect on their family) surely does not reflect the history of the procedure over time. That is, if we define "health" and so forth as it should, recognizing women have compelling reasons for aborting.* Since White supports the constitutional rights of even the unmarried to use contraceptives, his anti-abortion bona fides rests on sand.
Justice Rehnquist's dissent in Roe is less nasty, but as thin in its own fashion. First, he suggests "Roe" is not a proper plaintiff, though as a class action, surely some woman or her doctor has standing. He next plays dumb on "privacy," either interpreting it too narrowly (seclusion) or broadly (basic liberty to do things). This simply is a slipshod and dishonest interpretation of precedent. Next, there is a sort of historical argument that uses outdated reasoning for restrictive abortion laws to justify their continual security. Finally, he argues that to the extent there is constitutional protected liberties of this sort they only have to pass rational basis review. Leave the compelling interest test to equal protection.
Again, this runs counter to precedent, not that you would know it from his opinion. See also, Tinsley Yarbrough's recent biography of Harry Blackmun (fairly good so far) that continues the author's dismissiveness on the right to privacy:
In subjecting abortion laws to such strict judicial scrutiny, the justice drew not on modern due process precedents, but on Warren equal protection cases declaring that laws having a discriminatory impact on "fundamental" rights were unconstitutional unless necessary to further a "compelling" governmental interest.
As Blackmun might have asked, "have you read Roe?" To wit:
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 [p156] Eisenstadt v. Baird, 405 U.S. at 460, 463-464 (WHITE, J., concurring in result).
Warren was not on the Court in 1940 or when Eisenstadt was handed down. Likewise, cases such as Cantwell and Sherbert were due process cases, in particular, involving free exercise of religion. And, to the degree some of these were equal protection in nature, see Kramer (voting), this underlines how due process and equality overlap -- when fundamental rights are at stake, special care must be taken. Ironically, though Eisenstadt was an equal protection case (in name at least), White's concurrence avoided that path, relying more firmly on the privacy ruling of Griswold. Again, unsure how "discriminatory impact" was an issue there, even if early Roe critic John Hart Ely -- Warren's law clerk at the time -- wanted that to be the focus.
This matter is of special interest to me, but it underlines how basic subjects continually are subject to misguided sentiments. Roe supporters -- many of whom play the favored "take pot shots at an obviously loser case" game too -- are not free of such things. I will end with a progressive example, arising from analysis from a guest panelist on Laura Flanders' Grit TV program. Reference was made to Obama and the history of slavery in this country. Were not they not declared 3/5 of a person? Was not the Second Amendment specifically in place to arm slave patrols? Well, not really. But, the 3/5 line does pop up a decent amount of times, including during oral argument in Bakke.
The Constitution counts slaves (rather, "other persons") as 3/5 of a person for the sake of apportionment of the House of Representatives and direct taxes. Some elide past the "other persons" and suggest this provision applies to blacks as a whole. No, and the fact it didn't was a problem for Justice Taney in Dred Scott, suggesting why he didn't deal with the matter in his opinion (see Don Fehrenbacher's seminal book on the case). Free blacks, and I'm unsure if black slavery was ever present in Hawaii, were counted in full. Illinois was a free state. Anyway, counting slaves as full persons would have been a perversity, given how this would have helped slave states on the back of people treated as non-citizens. And, local control of the militia was important for various reasons, domestic police not only needed to hold down slave revolts.
The comments were just tossed out there, and such things tend to be let go, since even the likes of Democracy Now! use their programs to ask, hear an answer, and move on to the next question. It troubles me, when it doesn't drive me nuts.
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* Or, should have the power to choose if such and such case is compelling. This includes the young woman involved in Roe, who had trouble taking care of herself, and not having yet another child was more than mere convenience. The fact some women have the means and/or wherewithal to have a child in various situations (see Gov. Palin) does not change the fact. Gov. Palin has resources many other women do not, ditto her individual moral decision making. See, Douglas' opinion here.
One last thing that I have dealt with in the past -- some sneer at those who would allow women to abort when some birth defect is involved, suggesting this means they in effect think people with such conditions are worthless or not worthy of love etc. Much emotion is spent on this topic. It cannot simply be an abortion thing. Let's say if you know having sex on such and such day (or sex at all, some conditions perhaps leading to birth defects) will cause such a child to be born. If you do not, are you not comparably bad? Why not? The child will be special all the same etc.
Born children and adults are not the same thing as embryos. And, thinking another child -- for whatever reason -- is a bad decision, does not erase the care you supply to existing ones. Just ask parents of multiple children who had an abortion early or later in life. But, the reasoning offered by some suggest otherwise. In fact, the fact parents support the right to choose seems confusing to some. Others who are parents realize life is a bit more complicated than some wish to admit.