While I'm on the subject of bad argument, with the usual proviso that I realize that I'm not a saint on these things, something written by Judge Noonan annoyed me today too. It popped up when I was searched his name in another context.
Overall, Noonan appears to me (I use qualifiers since I tend to only see small samples here) to have an impressive judicial and writing career. I found Narrowing the Nation's Power: The Supreme Court Sides with the States good, though it was a bit thin at times, even though I generally agree with the arguments put forth. Noonan has written a lot about moral issues, including contraceptives, usury and abortion. He is against abortion, both personally and as a constitutional right, but that's okay. I can find his arguments wrong and still respect him. The start of an article* (from when the ruling was first decided) on Harris v. McRae was wrong-headed all the same:
The paragraph continues:
The lower court judge dealt with religious freedom arguments, both establishment and free exercise related. I don't see why the Supreme Court majority noting that fact stealing is disallowed even though most religions frown upon it is a compelling rejoinder even if it might be "succinct" as compared the lengthy discussion of arguments made by the district judge. Abortion, along with various other issues, is not as simple as stealing. It is a major moral and religious dispute that (partially for constitutional reasons) should be left to individual choice. And, singling out abortion for denial in a Medicaid law is problematic in part since it wrongfully singles out a certain religious sentiment for protection. It is not merely "if a person has a religious belief leading to an action for which money is not available, the federal government as a constitutional obligation to supply the money."
Noonan also argues that if an "unborn child, as biologists and pediatricians and mothers claim, is alive, he or she is not merely potential." This misses the point of what "potential life" means in Roe v. Wade. The word "life" there does not refer to some simple biological entity of life or a skin cell would be "alive." It refers to the "life" protected by the Due Process Clause. An embryo or fetus can be "life" in various ways, including under the lights of Judge Noonan's religious or moral sentiments.
Finally, there is a dig at a usual target:
I again cite this just as an example, including an example of misguided abortion related analysis that people I otherwise respect (see also, John Hart Ely Jr.) unfortunately sometimes have involved themselves in.
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* "The Supreme Court and Abortion: 1. Upholding Constitutional Principles."
Overall, Noonan appears to me (I use qualifiers since I tend to only see small samples here) to have an impressive judicial and writing career. I found Narrowing the Nation's Power: The Supreme Court Sides with the States good, though it was a bit thin at times, even though I generally agree with the arguments put forth. Noonan has written a lot about moral issues, including contraceptives, usury and abortion. He is against abortion, both personally and as a constitutional right, but that's okay. I can find his arguments wrong and still respect him. The start of an article* (from when the ruling was first decided) on Harris v. McRae was wrong-headed all the same:
Before 1973 it would have seemed only a far-fetched hypothetical contention that the federal constitution contained an enforceable right to obtain money for an abortion.Really? The actual issue in this case was if a Medicaid law could single out one particular procedure, even if necessary to protect the health of the woman, was constitutional. To cite this limited question in such an open-ended nature is like saying there is some constitutional right to a lawyer, full stop, not one limited to criminal cases with some minimum possible jail time when the person is unable to pay, which cannot be disallowed in some narrow arguably arbitrary category that otherwise would cover the ground involved. An unconstitutional condition, that is. It is not simply about a desire to (as suggested later) "translate the new constitutional liberty of abortion into a constitutional right to fund abortions from the public treasury." The liberty is not simply "of abortion," either, any more than one simply has a liberty "to read abortion publications."
The paragraph continues:
a virtually unqualified right of every woman, married or single, adult or minor, to have an abortion through the nine months of pregnancyB.S. Minors could be required to get a judicial bypass to avoid parental involvement. I'm not sure how "unqualified" a right is given the acceptable regulations before you can obtain one. A lot more these days, but a decent number back in 1980 too. The allowable last trimester ban (not just the last "two months" of pregnancy) does have a health exception, as noted, but it has some limit. It's all mainly theoretical since good luck finding a doctor willing to perform one for some trivial reason and not violate some medical guideline to do so. So, no "absolute" liberty in place, in theory or practice.
The lower court judge dealt with religious freedom arguments, both establishment and free exercise related. I don't see why the Supreme Court majority noting that fact stealing is disallowed even though most religions frown upon it is a compelling rejoinder even if it might be "succinct" as compared the lengthy discussion of arguments made by the district judge. Abortion, along with various other issues, is not as simple as stealing. It is a major moral and religious dispute that (partially for constitutional reasons) should be left to individual choice. And, singling out abortion for denial in a Medicaid law is problematic in part since it wrongfully singles out a certain religious sentiment for protection. It is not merely "if a person has a religious belief leading to an action for which money is not available, the federal government as a constitutional obligation to supply the money."
Noonan also argues that if an "unborn child, as biologists and pediatricians and mothers claim, is alive, he or she is not merely potential." This misses the point of what "potential life" means in Roe v. Wade. The word "life" there does not refer to some simple biological entity of life or a skin cell would be "alive." It refers to the "life" protected by the Due Process Clause. An embryo or fetus can be "life" in various ways, including under the lights of Judge Noonan's religious or moral sentiments.
Finally, there is a dig at a usual target:
For almost eighty years "substantive due process"-another misnomer, since process is not substantive-was derided by Justices Holmes, Brandeis, and Frankfurter, and their critique became constitutional orthodoxy.All the same, all applied the Due Process Clause in various cases to protect substantive liberties, including Brandeis in cases like Meyer v. Nebraska that served as the building blocks of the right to privacy involved in Roe. Anyway, as many have noted, "due process" has various connotations, including having a certain substantive content of limiting what all branches of government can properly do. Or, is Bolling v. Sharpe also illegitimate?
I again cite this just as an example, including an example of misguided abortion related analysis that people I otherwise respect (see also, John Hart Ely Jr.) unfortunately sometimes have involved themselves in.
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* "The Supreme Court and Abortion: 1. Upholding Constitutional Principles."