A Friday Round-up OnJudge Roberts
By John Cole Posted in The Courts — Comments (57) / Email this page » / Leave a comment »
There are several opinion pieces worth reading regarding Judge Roberts from the past few days. The first is this piece by Ed Whelan in NRO, which contains this bit about Roberts and abortion:
The third position is that the Constitution generally does not speak to the question of abortion. Under this substantively neutral position, American citizens would have the constitutional power to determine through their state representatives what the abortion policy in their own states would be. This neutral position — which three members of the current Court, Rehnquist, Scalia, and Thomas, embrace — also happens to be the proper reading of the Constitution (as I explain more fully here).
Insofar as sensible political labels might be applied to these three positions, it would seem plain that the first (pro-abortion) position would be labeled liberal (with the Roe version of that position being radical), the second (pro-life) would be labeled conservative, and the third (neutral) would be labeled moderate.
Of course, sense does not prevail in the frenzied abortion culture in which we live. Thus, the media routinely label the radical pro-abortion position as "moderate" and the substantively neutral position as "extremist right-wing." And, of course, the media consistently understate the radical nature of the Roe regime (often pretending, for example, that Roe merely protects abortion in the first three months of pregnancy), confuse the public into thinking that reversing Roe would render abortion illegal, and then cite the public's resulting support for the imagined Roe as supposed evidence of Roe's moderation...
John Roberts is, by all accounts, a man of deep intellect and high character who understands the proper role of the judiciary in our constitutional republic. There is therefore good reason to hope that he will be a genuine moderate who will not read his own policy views on abortion (whatever they are) into the Constitution but who will respect the constitutional authority of the people to govern their own states and communities on this and other issues of social policy.
Read the whole thing. Next up is this piece by Jacob Sullum in Reason, titled As Bad As We Want Him To Be?:
Critics of negative campaigning say attack ads reflect poorly on the candidates they're intended to benefit. That's not necessarily true, but I do find that attack ads often reflect well on the candidates they're intended to hurt.
When an announcer gravely warns me that someone running for public office opposes gun control and wants to cut spending, I think, "Hmm. He sounds pretty good." So it is with Supreme Court nominee John Roberts, whose detractors seem intent on accentuating his positive points.
The main complaint about Roberts is that he might vote to overturn Roe v. Wade. "We continue to believe that Roe was wrongly decided and should be overruled," said a 1990 brief that he co-authored as a deputy solicitor general in the first Bush administration. "The Court's conclusion in Roe that there is a fundamental right to abortion and that the government has no compelling interest in protecting prenatal human life throughout pregnancy finds no support in the text, structure, or history of the Constitution."
Assuming Roberts agrees with the argument he made as the government's lawyer, I see no cause for alarm. Given how weak the reasoning underlying Roe is—so weak that many abortion rights supporters are embarrassed by the ruling, which they consider a legal and political mistake—it would be alarming if Roberts didn't think the case was wrongly decided.
Again, read the whole thing. The third piece is law professor William LaPiana, who has this to offer:
Some 30 years ago I was a pre-law adviser at Leverett House in Harvard College when John Roberts was an undergraduate. I hasten to add that I do not remember ever giving him any advice about going to law school. The occasion of his nomination to the Supreme Court is my excuse not for personal reminiscence but rather for some thoughts about the American legal profession at the beginning of the 21st century and about the possible future of the Supreme Court.
John Roberts is a child of the baby boom, both in age and in biography. He has come within reach of filling one of the most important roles in American life by combining a willingness to work, a good deal of ability, no doubt some good fortune and what surely were outstanding scores on standardized tests.
To society at large, Roberts is an example of what perhaps most Americans identify as our meritocratic society. His is not a story of "rags to riches," of course, but one of outstanding performance at an elite educational institution and a rise from the middle class to the top of one of the two professions -- law and medicine -- that dominate the ambitions of our generation.
Michael Barone, in USNEWS, writes:
Prediction: George W. Bush's nominee, John G. Roberts, will be confirmed by the Senate. Second prediction: Justice Roberts will do much to redefine what is the mainstream in American constitutional law...
A Justice Roberts will probably move the court some distance to the right on some issues—though probably not on all those that conservatives would like. But in the process, I think he has the potential to help redefine what is the mainstream of the law. The New Deal justices appointed by Franklin Roosevelt redefined the mainstream of the law very quickly on the major judicial issue of the day: how much economic regulation the Constitution allowed.
Conservatives have been frustrated that over the past 30 years—in which seven of the nine justices have been appointed by Republican presidents—that mainstream has changed little. The confirmation of John Roberts will move the court a significant distance in their direction.
Cass Sunstein, writing in The New Republic (registration required), offers a discussion of various judicial philosophies, and writes:
President Bush has added both minimalists and fundamentalists to the lower courts; he has not shown a clear preference in favor of one or the other. Roberts's record, taken as a whole, gives some modest indications that he tends toward the minimalist camp.
Here's a good reason to think he isn't a fundamentalist: He hasn't publicly committed himself to it. Most fundamentalists are not in the closet. They have strong convictions about how to interpret the Constitution. They believe that the Court has gone badly off the rails, and they are not shy about announcing that fact. Bush might well have chosen another candidate, such as Judge J. Michael Luttig or Judge Janice Rogers Brown, whose fundamentalist credentials are much clearer. Minimalists don't need, or even like, to announce themselves as such. Judge Roberts's general silence--his unwillingness to attack existing constitutional law in any kind of public way--suggests a minimalist temperament.
There is another point. Judge Roberts's opinions thus far are careful, lawyerly, and narrow. They avoid broad pronouncements. They do not try to reorient the law. When he disagrees with his colleagues, he does so with evident respect and with a frank recognition that reasonable people can disagree. In a separate opinion concluding that American soldiers cannot sue Iraq after being held as prisoners in the Gulf war, Roberts's opinion on some technical issues announces his "agree[ment] with the majority that this question ... is close." His opinions show none of the swagger that can be found in some of the writings of Scalia and Thomas.
Also in the New Republic (registration required), Jeffrey Rosen adds the following cautious yet positive evaluation of Roberts, which includes this speculation about Judge Roberts:
Given Roberts's dazzling talents--his intelligence, judgment, devotion to legal craft, and palpable belief in the power of reasoned argument to constrain judges in meaningful ways--it seems quite possible that his vision of the force of precedent might evolve and grow during decades on the Court. I don't mean "evolve" in the sense that liberals hope and conservatives fear--that Roberts will become less conservative and more liberal. I mean, instead, that the application of his determined intelligence to the hardest and most elusive questions of constitutional law will lead Roberts to develop a vision of constitutional stability that is uniquely his own. What precisely his vision will be is probably not evident at the moment, even to Roberts himself. But, by focusing on Roberts's judicial philosophy, rather than his views about the controversies of the moment, the Senate can do much to illuminate this crucial question in the confirmation hearings ahead.
The final piece is from Michael C. Dorf, the Michael I. Sovern Professor of Law at Columbia University, who concludes:
I doubt that President Bush directly sought from Roberts a commitment on particular issues, and as I share the general view of Roberts as a man of integrity, I am certain that if he were asked, he wouldn’t have provided such assurances. So how can movement conservatives be confident that Roberts will vote as one of them?
The short answer is that they cannot be wholly confident, but the longer answer is that they can take considerable comfort from the company Roberts keeps. He clerked for then-Associate Justice William Rehnquist when Rehnquist was clearly the Court’s most conservative member. He spent most of his career in the federal government, but only during Republican administrations. Thus, while Roberts is entitled to say that briefs he wrote, including those calling for the overruling of Roe, were in the service of a policy set by his political bosses, skeptics are equally entitled to ask why Roberts chose to work for these and not for other bosses.
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A Friday Round-up OnJudge Roberts 57 Comments (0 topical, 57 editorial, 0 hidden) Post a comment »
he is most likely pro-life I am not sure that, as a Supreme Court justice, he would be willing to strike down a law simply because it conflicts with his personal beliefs.
He seems believe more in the law than his politics. That is all we can ask from any justice.
basically it makes the argument that judicially he is likely to be neutral on abortion-ie believe that abortion is not something addressed in the Federal constitution but something for the states to decide.
I suspect this is the correct interpretations of how he views it judicially.
Does this mean they overturn Roe tomorrow-likely not-for one thing there isn't a majority, but in general Kennedy has not been a liberal interpreter of abortion law (on this he usually is with the conservatives). I strongly suspect we will see a ratchet back of rights, and I suspect the issue of "health" will be solidly defined and I suspect that the states will be permitted a stricter interpretation of what "health" is when writing abortion restrictions.
Orin Kerr points to extremely valuable excerpts from a transcript of a panel discussion on the just-completed Supreme Court term in 1997 in which Roberts participated. This has to be heartening. Asked whether the Court in 1997 was "conservative," Roberts replied:
Well, I think it's a moderate court but one that is very serious about the limits it sees in the Constitution, whether it's the limits on Congress, limitations on the federal government, or limitations on the court, itself. And if it's a court that doesn't seem so warm and embracing of theories that are popular on the law school campuses, I hope the other members of the panel will forgive me for not thinking that's a serious flaw.
Gold, Jerry! Gold!
So I've bounced around on how I feel about Roberts over the past few days and I'm still feeling squishy.
On the negative side (at least as far as Roe is concerned), I see him as unlikely to overturn precedent.
On the positive side, I see him as:
a) generally fairly conservative
b) possibly someone who could pull Kennedy back to the right based on his rasoning and personality.
"The third position is that the Constitution generally does not speak to the question of abortion. Under this substantively neutral position, American citizens would have the constitutional power to determine through their state representatives what the abortion policy in their own states would be. This neutral position -- which three members of the current Court, Rehnquist, Scalia, and Thomas, embrace -- also happens to be the proper reading of the Constitution (as I explain more fully here)."
I disagree. Roe was but the sequel to Griswald. In Griswald, the question was whether a state could outlaw contraception even between married people. And even prevent doctors from counseling married couples about birth control.
Where is the state interest in such a thing? The court looked at the listing in the bill of rights. They found there was a strong issue about privacy. Not forcing citizens to quarter troops and not requiring self-incrimination, being secure in paper and effects - all are examples of privacy.
And further they cited the all-encompassing 9th amendment. This amendment says:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
So contraception doesn't have to be mentioned in the constitution for the constitution to be applicable. This fits the general framework, which seeks to control the power of government - all of government including the legislature. The premise of the country is liberty - not democracy. And the constitution starts from a premise that rights of individuals are inalienable and powers are granted. Where in the constitution have we granted the government power over whether we should have children or not; or how we conduct ourselves sexually? Where is the state's interest? Is it reasonable that we are to be secure in our papers but not in our sexual relations?
Scalia argues that Roe is different in kind than Griswald. I don't think it is. The common birth control pill is also an abortifacient. It is listed that way. It doesn't always stop ovulation. An additional line of defense is that it stops a fertilized egg from attaching to the human wall and it is expelled. Expelling fertilized eggs is routine in nature so this isn't a big deal. Doctors don't even consider this an abortion. They don't consider a woman pregnant till the egg attaches.
However, this is radically different than those that insist life begins at conception. And if it doesn't begin at conception, when does it begin? Such is the question in Roe.
Roe will never be reversed in practice. Even if the court reverses the decision. Once people understand that a law giving 14th Amendment rights to a fertilized egg, would require the banning of the birth control pill and the IUD, it will lose support.
This is a classic case of science verses superstition. And when the superstition starts to impact people in their day-to-day life, they will quickly discard it.
However, the shame will be that the ninth amendment, which speaks to our liberty, will have been compromised and liberty in a number of areas will suffer. This is a horrible answer and one conservatives should consider carefully.
imho,
Stanford
at least.
Kennedy generally is for restrictions on abortion.
I think a redefining of the law, better definition of the health exception and other things may change. I think in the end we are going to see the state have a little more leeway in their ability to restrict abortions, especially late term ones, and that one specific late term procedure the majority of people disagree with.
But there is a parental notification law coming up this term, and I think at least one of the partial birth abortion bans come up either this term, or will be on the next term.
Things will still get better.
Even if Renny and O'Connor are his only replacements, assuming Bush picks someone like Luttig for the Renny spot, we'll still have a Court that will be more likely to change the abortion regime in this country.
CJ Luttig (or whoever) combined with Scalia and Thomas will comprise the strongest bloc in favor of completely overturning Roe, Doe, and Casey. Kennedy wouldn't do so, but does seem amenable to allowing later-term abortions back into the political process. If Roberts, who is a politician as well as a jurist, can find a way to bridge the gap between Kennedy and the 3 originalists, we could see a future abortion ruling that draws a firmer line between pre-viability and post-viability abortions, pretty much allowing states to do whatever they want regarding post-viability ones. We could also regularly see the Court uphold the parental notification, spousal notification, and PBA laws that states periodically pass.
All in all, not a bad deal for the pro-life movement.
Roberts is fairly persuasive, so he may be a sane persuasive voice to bring Kennedy around.
Ginsberg, Breyer, Stevens and Souter are pretty much set, but Kennedy is definitely amendable to allowing for greater restrictions in the later terms, and Roberts may be in a position to persuade.
My fear is that Bush gave us the conservative for O'Conner, but will haul out Gonzalez again or some other moderate for Renquist (I hope not, but it is my fear).
Replacing Renny with a moderate would be political suicide.
I actually read it somewhere on the net, so the idea is out there.
I am hoping he goes hard conservative/outright originalist with Renquiests replacement-somebody like Luttig, or maybe Jones.
And if Rehnquist retires after the end of his need for electability (i.e. 2007)? Can anybody say Chief Justice Gonzales?
to spite the party either, and that is what that appointment could very well do.
I just don't think Gonzalez is wanted in the position by the base, and to wait until '07 to slip it in would be a quick way for the dollars to dry up when they are needed most.
The '08 election is going to be a huge fight for both parties more than likely-I don't think ticking off the base for Gonzalez would be a wise move and I think Bush understands that (especiallly if Jeb ever wanted to be a viable candidate in the future).
Is that no legal scholar of any repute on either side of the spectrum defends Roe's reasoning any more; at most, they try to defend the "reasoning behind the reasoning," which is to say, they try to find a good reason for an outcome they like.
You have not only managed to repeat a line of argument abandoned for decades, but you've also managed to create any number of hip canards about constitutional law that never saw the light of day, and created numerous logical and categorical errors in the process. Bravo.
Attention, other commenters: He's had a warning for Known Facts. By contrast, this is actually an example of a comment that wouldn't lead to banning, even though it's so incredibly dense that I think I might get sucked into my screen for reading it. The contrast is useful.
then I think the CJ pick will be ROBERTS and the new AJ will be one of the usual suspects (Jones, Garza, Brown, Owen).
The other option is that you do go with Cecilia M. Altonaga and thereby you get a woman and a Hispanic in one pick!
Then if Stevens goes, you put in Luttig or if you really want to poke a sharp stick in their eye, Janice Rogers Brown.
Generally, I am a champion of states' rights. However, there are certain decisions that simply cannot be made at the state level. Leaving it up to the states to decide whether a human being can be owned as property ultimately did not work, and there was a reason it did not work. Similarly, it will not work to leave it up to each state to decide when "human life" begins and what protection "human life" is entitled to. If another state in this nation were to decide that "human life" does not begin until 30 days after birth, would that to OK with you?
"no legal scholar of any repute on either side of the spectrum defends Roe's reasoning any more; at most, they try to defend the "reasoning behind the reasoning," which is to say, they try to find a good reason for an outcome they like."
I don't think I know what this means. Griswald was the sequel and cited precedent. Since Roe, there has been a narrowing of the decision. But the overall decision still stands.
Webster inserts a viability test at about week 20. It didn't find a state compelling interest at all points from conception and that greatly upset Scalia.
Planned Parenthood v Casey tested the reasoning in Roe. Oconnor, Sueter, and Kennedy delivered the opinion stating:
...Although Roe has engendered opposition, it has in no sense proven unworkable, representing as it does a simple limitation beyond which a state law is unenforceable...
...No evolution of legal principle has left Roe's central rule a doctrinal anachronism discounted by society. If Roe is placed among the cases exemplified by Griswold, supra, it is clearly in no jeopardy, since subsequent constitutional developments have neither disturbed, nor do they threaten to diminish, the liberty recognized in such cases. Similarly, if Roe is seen as stating a rule of personal autonomy and bodily integrity, akin to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection, this Court's post-Roe decisions accord with Roe's view that a State's interest in the protection of life falls short of justifying any plenary override of individual liberty claims...
...No change in Roe's factual underpinning has left its central holding obsolete, and none supports an argument for its overruling...
There was some adjustment of the timing. But the rigid trimester framework was rejection. The state could take steps to make sure the woman's consent was informed. And a viability test was presented.
Maybe it is the narrowing of Roe that you speak when you talk about defending the "reasoning in Roe". If so, I think I agree that the rigid trimester test should be conformed as science advances. And I think the viability standard (about 26 weeks) should be conformed at some future date. So we would be in agreement.
But the central holdings to Roe (for me) are 2. First "life" is a process not an event. Second, there is a right to privacy, as noted in Griswald.
"You have not only managed to repeat a line of argument abandoned for decades, but you've also managed to create any number of hip canards about constitutional law that never saw the light of day, and created numerous logical and categorical errors in the process. Bravo."
My argument may have been abandoned for decades. It is difficult to say because you are not specific in your criticism. My argument around the 9th amendment goes back to Federalist Papers as I recall. Maybe it is now abandoned.
But I don't think I appealed to authority so much as the history as I understand it and the plane language of the constitution. Additionally, I thought it interesting about the status of some of the most popular methods of birth control and its intersecion into the abortion agrument. I would be interested in your thoughts here. Should you be specific in your criticism that would aid me. Keep in my mind, I am just a simple country accountant in Texas and sometimes need things explained.
"Attention, other commenters: He's had a warning for Known Facts."
What is that?
"By contrast, this is actually an example of a comment that wouldn't lead to banning, even though it's so incredibly dense that I think I might get sucked into my screen for reading it."
I sense hostility and again a level of criticism that is not helpful to me. Might I suggest that you offer something constructive here? I have tried to leverage off what little you have given me to work with and provide some legal scholarship from the justices involved in the decision, but it is difficult to hit your mark.
Stanford
"Sequel" should be deleted.
"Plane" should be "plain".
"Rejection should be "rejected"
"Intersecion into" should be "intersection with".
"Keep in my mind" should be "keep in mind".
Is there an edit feature? I could not find one. Again, my apologies for the typos.
Stanford
on abortion until a case comes down the pike. All the assurances in the world don't mean anything (though I for one am hopeful he will be pro-life). It's depressing that 7 of the 9 justices on the court are Republic appointees, and four of those Republicans are pro-Roe. At some point I think you just have to hope and pray for a conversion of some current pro-Roe justice's heart on this issue. Perhaps it will be Kennedy, or even Breyer, who comes around. Maybe that's just wishful thinking. But on a case that enshrined such evil in the constitution, perhaps we can hope for the intervention of providence. Argument and protest won't do it.
at least right now the law is clear that citizenship in the US begins at birth, what is at question is when or whether any right to life can be conferred on the fetus.
"Similarly, it will not work to leave it up to each state to decide when "human life" begins and what protection "human life" is entitled to. If another state in this nation were to decide that "human life" does not begin until 30 days after birth, would that to OK with you?"
I had not thought of that before. You make a good point.
So how does one draw that line in the sand between life and personhood? For me that seems to be a question of science and I expect the line to shift somewhat.
Stanford
round for a total reversal of Roe.
Kennedy has almost always been with the pro life justices though on issues of restrictions on abortions, so he is definitely persuadable at least to some degree. I think if Roberts proves to be even moderately pro life that we can at least see partial birth abortion bills stand, and probably a better definition of what constitutes "health" and when it can be invoked.
Breyer is sometimes persuadable on some social issues, so we will see, but I wouldn't count on it, he seems pretty firmly in the pro Roe camp.
question already, but those who would treat abortion like the Holy Grail choose not to pay attention to that answer.
AT the very least I think the arguement can be made for viability at somewhere around 24 weeks.
But try suggesting that to the ladies at NARAL or the men and women in black robes.
I think either Breyer or Kennedy will be a very hard sell on fully overturning Roe... it would take a major change of heart by either of them, and I don't see any indication of that.
If it ever gets to 5-4 (assuming Roberts is pro-life), the pro-life and church communities should intensely and nationally pray for the conversion of one of these five justices on this issue... leave the issue in God's hands and show the seriousness with which we take it.
I think I would accept a brain wave argument. I have researched the 8 weeks brain wave claim - and disgarded it. Based on what I see, I could go with 20 weeks.
Stanford
talk of viability here.
This, IMO, is where we should be leading the abortion talk. I think we'd have much more success with serious restrictions on abortion if we started with viability.
Susan Torres, http://www.susantorresfund.org/
lays in a coma in a Virginia hospital with a 24 week old fetus in her belly. Her doctors are trying everything they can to keep her body functioning as long as they can to give this baby a fighting chance. At 24 weeks gestation, this baby has a 50/50 chance of survival.
Given those odds, why should someone be allowed to abort a child at this point?
This is one area where the Roe decision created an artificial system that doesn't appear to take advances in science or scientific knowledge into account.
By this point, a baby should have the right to live or at least have its right to live fairly compete with the mother's right to kill it.
Roe actually was fairly specific for first trimester abortions. It was the subsequent cases like Doe and Casey that has caused this "abortion on demand no matter what" mentality that the liberals are so rabid about.
At any rate, while I'd prefer to see all abortion on demand become illegal, except for life and death situations, I think we could make strong inroads with restrictions if we started talking viability more.
FWIW-the family of Susan Torres could still use financial assistance. Even if this child survives, Jason will have a mountain of medical bills when all is said and done.
IMO-the pro-life movement could do itself no bigger favor than to put their money where their mouths are and help this guy out. What he is doing is absolutely courageous in my book. If you are pro-life and haven't donated to this cause, please do so today if you can at all.
(Sorry for my soapbox and for momentarily hijacking the thread.)
Thanks for this important "hijack." Here is a link to make it convenient. IMO, no need for apologies.
to make a comment without sounding snarky or using known facts. Bear with me guys and let me know if I screw up (which I probably will).
In my honest opinion, Roe should never be overturned. My Catholic background makes it difficult for me to see anything good about abortion, but I wish for the right for a woman to choose to remain lawful. The thought of women aborting babies for simply not wanting the child, or any other immoral reason, disturbs me. However, I sincerely believe that the government has no right to direct women's decisions on this matter. Therefore, I believe this is an issue of privacy.
I notice that many conservatives (and pro-lifers in general in the case of abortion) would like to put restrictions on issues related to sex...gay marriage, abortion, contraception, and etc. However, why don't they advocate restrictions on corporations? This is an honest question, I'm not trying to bait anyone. We have seen corporations such as Enron get away with financial delinquency. Who knows what the implications on people were? It just seems hypocritical to me that, in the name of capitalism, we let the many of corporate elite get away with corruption, yet we refuse to let women choose.
If we ban abortion, who's going to raise and care for these children (in cases where mothers can't afford to have a child)? Are pro-lifers going to adopt all of these children? How would pro-lifers respond to the situations in which abortions would be used? In other words, what would pro-lifers have to say about the black or Mexican woman living in an impoverished neighborhood, having several kids, while living in poverty, who has gotten pregnant and can't afford to have this child? What solutions could be given? We know that the awareness and distribution of contraception would not fly with the religious folk. So shall we forbid poor people from having sex?
***I hope this doesn't sound snarky. It's not that I don't have the capacity to not be snarky; I have a B.A. in Political Science. But my experience blogging elsewhere (DailyKos) never included being warned about snarkiness or using "known facts". I'm not sure whether people at redstate are too sensitive to these things. If my comments need more academic quality, I will gladly them more academic.
I've been involved in the abortion debate for a long, long, long time.
And you're the first person to use Enron in an attempt to justify the legality of abortion. That could perhaps be the biggest non sequitur I've ever seen in my entire life. So, congratulations.
P. S. The tone of your logically incoherent post was fine.
Roe should be overturned because it is bad law. There is no constitutional right to an abortion. Period.
Abortion is an issue that should be left to the states to decide, much like capital punishment.
As for poor girls, well, there is always adoption.
That's about all I'll say about abortion as it has been debated here at great lengths many times.
I wish I could link to a few of the diaries, but I think they are not in the archives any more.
if you're talking about abortion in the terms personal opinion, i think you overlook the simple fact that pro-abortion advocates are taking away the choice for the UNBORN...i have heard the argument that if the 46(?)million aborted babies wern't aborted, then they would have terrible lives themselves...no human has the ability to look into the future and see how the "dice" are cast in everyone's lives, so arn't pro-abortion activists actually AGAINST choice because they are choosing for the unborn child whether or not their lives are worth living?
if you're talking about abortion in a political sense, then you must realize that the "right of privacy" actually doesn't exist in the constitution...it was a pure creation of Chief Justice Henry Blackmum (i think)when he judicated over the contraception case (forgot the name)...and a true supreme court justice should judicate over cases on the basis of the constitution, not on their own personal views...
sorry if that was an overly simplistic entry for some of you...haha i'm just in highschool...=)
I'm going to address each of your paragraphs briefly, I'll label them by number skipping your disclaimer.
- It's your opinion that it's a matter of privacy, it is many peoples opinion that it's a matter of protecting a life. I'm sure you can see why your opinions on it being private matter very little to the second group.
- Not much to say here, I'd just refer you to point #1 and hope you see the difference between protecting a life and corporate law.
- This is one of the more tedious arguments I run across. Once again, I remind you that these people want to protect life. If the choice is between a baby being born in a shack, and having a chance at life, and terminating that life, it seems a rather obvious choice to make. Rather along the lines of advocating the murder of the homeless because you believe their lives aren't good enough to live. As for people popping out tons of kids they can't support, it is dumb, not grounds for terminating the inconvenient buggers. There may be a few people here who find birth control to be a bad thing, I don't, and I don't believe the majority do, so the last is rather irrelevant.
His statement says he isn't going to retire as I recall. So now I wonder if he can last 3 years.
Stanford
"At any rate, while I'd prefer to see all abortion on demand become illegal, except for life and death situations, I think we could make strong inroads with restrictions if we started talking viability more."
I can't reconcile the end of your sentence with the beginning.
Certainly most Americans would not agree with abortion on demand in the 9th month and the day of labor. Similarly, the morning after is innocuous. The answer lies somewhere in between. The key to defining that arbitrary "somewhere" should be science based. Along that process to development, it would seem reasonable to allow more personal liberty early and more state involvement as one approaches the line.
imho,
Stanford
as soon as Roberts looks like a solid go (either out of the judicial committee or after the confirmatin vote).
I don't think his health is going to hold up through another term-it might, but I have a lot of doubts. I think he is ready to go, but he understands the politics of the appointments.
Abortion addresses a couple of issues.
The unnamed issue is the beginning of personhood? When does the fetus compete with the mother and at what point is a person granted 14th Amendment protections.
The intuitive answer seems to me at birth. But upon reflection I agree that it is rational to extend protection pre-birth. Is life a process? That is the question addressed in Roe. Would you have 14th amendment protections granted differently by different states?
Why would one consider early abortion evil at all? It is perfectly normal. Fertilized eggs are expelled often and without fan fare. I think the estimate I read was 30%. Doctors don't even consider you pregnant at the time of conception and for good reason. It is about as "evil" as not allowing the egg to fertilize in the first place.
In my state some druggist are not selling birth control pills because they consider them chemical abortions (link below). And I suppose that is true if one consider all pregnancy ending events post conception to be abortions. Should states be allowed such intrusion into our private lives? Another question answered by Roe.
Here is the link from USA Today re: druggest refusing (sometimes stealing) birth control prescriptions.
http://www.usatoday.com/news/nation/2004-11-08-druggists-pill_x.htm
Stanford
intent was in Roe, but then along came Doe, which basically makes abortion on demand legal all the way up to delivery, as long as a doctor thinks having the baby could have an adverse affect on you (and adverse is broadly defined).
It isn't so much Roe that has to be worked on, but Doe and probably some of the subsequent cases that require the "health" exception.
But I do think at some point we are going to have to come to terms with the fact that by about the 24 week the baby is in reality a baby, and isn't any less a human than a premature baby born at the same time.
"if you're talking about abortion in a political sense, then you must realize that the "right of privacy" actually doesn't exist in the constitution"
The reasoning in Griswald seems to me fairly complete. There are 10 amendments. Some refer to specific events of the times. One makes clear that rights extend beyond the ones listed. From Griswald:
"Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment...
..The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
(I separated the last sentence for emphasis. Could I have bolded it? Do HTML tags work?)
So there you have it. Privacy is all over the constitution. You just don't find the word. And the 9th Amendment (my favorite) makes clear that one doesn't have to a right listed. We have unlisted rights.
Our experiment is about liberty - not democracy. A good constitution will constrain the majority from intruding on an individual's liberty. And ours does. Conservative should be careful in allowing powers to the government it does not have. Where in the constitution does it say government can control reproductive choices?
Imho,
Stanford
Why would one consider early abortion evil at all? It is perfectly normal. Fertilized eggs are expelled often and without fan fare. I think the estimate I read was 30%.
Um, because a great many of us do find it evil.
You really want to know how an abortion is different from an egg that fails to implant (or grow)?
Intent. When one gets an abortion they know they are pregnant, and have chosen (more often than not based on a selfish purpose) to have it killed.
When one suffers a miscarriage or an egg fails to fertilize the mother has no control over it, and has no ability to decide if she wants the baby or not.
I am unfamiliar with your Doe example. Could you (when time allows) educate me in this regard. Or perhaps link the case.
I have read Griswald, Roe, Webster, Planned Parenthood. BTW, I find reading Renquest to be more of a burden then other opinions. Is it just me?
Stanford
Outcome is the same.
No one sheds a tear over an egg that doesn't implant. Mostly they don't even know. I think if more people did know how common this is, their perspective might change.
I suppose I accept your "it is evil because we believe it" idea. I just don't understand why you believe it.
I don't think it is important. Personal beliefs are sacred to each and to each his own. It is the evil as to legislation that I question.
imho,
Stanford
And it is from that case that we have the health exception defined (Roe permitted limits on abortion in the 2 and 3rd trimesters as long as there was a life or health exception).
The health exception in that case has a very broad definition, although there is debate as to wether that health exception should apply as the legal standard for the definition.
I found this on google and it looks like the complete decision:
attach no value to life at that stage. Many of us do, we believe that it is not our place to play God, and to determine who should live and who should die, right down to the smallest and most vulnerable among us-those in the womb who have no voice and have no rights.
Yes I think that is it in a Nutshell.
"we believe that it is not our place to play God, and to determine who should live and who should die"
Belief systems differ amongst people for certain. Using that same logic, I could limit contraception of any kind leaving to God who will be born and who will not. After all, all cells are alive. Sperm is alive. Egg is alive. A post conception blastula is also alive. There is life along a spectrum for me. Am I playing God when I have safe sex? Clearly some think so. And for them that is ok.
My point is that preconception and postconception loses relevance in the "playing God" discussion -it seems to me. It moves the abortion debate backwards in the spectrum of development.
Stanford
but put together they are human.
They have all the DNA that makes one a human, and every single person alive at one point was a human at that stage of development.
You choose to put no value on human life, I do, exactly why should your opinion be the supreme law of the land?
Just me said:
"A sperm is not human an egg is not human...
but put together they are human.
Response:
They have all the DNA that makes one a human, and every single person alive at one point was a human at that stage of development."
Every single human was a separate sperm and a separate egg. Had our parents used contraception at the right time we would not be here. Why should one devalue our lives by allowing for our non-existence?
Really, all you are talking about are biologic processes. One can create life from just the egg. Science will allow for a virgin birth. Would such a clone brought to term be deprived of 14th amendment protection because it was conceived sans sperm DNA?
I was directed to the Doe decision. Justice Blackmun addressed it this way:
As Mr. Justice Clark has said: ..."To say that life is present at conception is to give recognition to the potential, rather than the actual. The unfertilized egg has life, and if fertilized, it takes on human proportions. But the law deals in reality, not obscurity -- the known rather than the unknown. When sperm meets egg life may eventually form, but quite often it does not. The law does not deal in speculation. The phenomenon of life takes time to develop, and until it is actually present, it cannot be destroyed. Its interruption prior to formation would hardly be homicide, and as we have seen, society does not regard it as such. The rites of Baptism are not performed and death certificates are not required when a miscarriage occurs. No prosecutor has ever returned a murder indictment charging the taking of the life of a fetus. [7] This would not be the case if the fetus constituted human life."
Just Me said:
"You choose to put no value on human life, I do, exactly why should your opinion be the supreme law of the land?"
Response:
My opinion isn't the law of the land. I seek no control over your actions. My philosophy is "Every man is a King" which is much different than "Democracy Rules". I seek neither an excess of "rules" controlling your personal life nor do I seek to "rule" your decision personal decisions. And I care not if none or many join my opinion against yours. Do, as you will.
But others do attempt enforcement of opinion in areas where they have no legitimate interest. From the same case, Justice Douglas concurring opinion:
"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 [410 U.S. 179, 215] discomforts of pregnancy; to incur the pain, higher mortality rate, and aftereffects 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."
Now I hope I have answered your questions. And I plead not guilty to your charge that I want my opinon to be the law of the land and hope I have carried my burden. I now pose a similar question to you?
As you consider all post conception stages worthy of 14th Amendment protections, would you advocate the banning of the birth control pill as it sometimes causes a fertilized egg to not attach? Would you make it the law of the land?
Stanford
A re-reading of your post nullifies my last question. While it may be applicable to others, it isn't applicable to you. My apologies. Also, thanks for the Doe link.
Stanford
any of the dissenting opinions.
Also, one thing that bothers me about these opinions is that they tend to dismiss entirely the issue of personhood.
They even invoke the issue of baptism (except it ignores the fact that people of my faith do not even believe in infant baptism, so to use baptism as some fact of personhood implies that Baptists do not recognize a person as a person until they are baptised).
I really think the court has gone wrong in totally dismissing the issue of personhood, and when the rights of the fetus should become paramount. I just don't think you can argue that somebody in their 7th or 8th month of pregnancy should be able to use the health exception, because the baby may be a financial burden to them-by that point they have known they were pregnant for several months, they know their financial situation, and there is alwasy the possibility of adoption as a solution to this "health" concern.
I think at some point this issue is going to have to be revisted, and I think to deny personhood to a fetus past somewhere around 20-24 weeks (or at least personhood to the point that the rights compete and the babies right to life is presumed to trump the mothers right to abortion without good cause) is insane, and there is no way to justify it legally, scientifically or morally.
"I think at some point this issue is going to have to be revisted, and I think to deny personhood to a fetus past somewhere around 20-24 weeks (or at least personhood to the point that the rights compete and the babies right to life is presumed to trump the mothers right to abortion without good cause) is insane, and there is no way to justify it legally, scientifically or morally."
I agree for the most part. Re-reading the 14th, I notice the difinition of citizen. Then the amendment goes on to speak of person. It is almost as if they define citizen and person the same.
This may be why they default to state interest. But I agree with your point. And I think the standard is much stricker in other developed countries.
Stanford
The "abortion is evil to us" sounds like a conservative known fact. Abortion seems evil because the Bible suggests it, but can it be proved evil? Just a thought.
Taking the life of any child is evil. One not need to look to the Bible to figure that one out.
and non religious pro life people.
I confess I am Christian, and my faith certainly informs my opinion on the issue, but one does not need to appeal to the Bible or God to know that killing the innocent is evil.
"Killing the innocent is evil". I'll leave it at that.
supporter of human rights for the unborn.
Check out yesterday's front page article on John's wife:
http://www.latimes.com/news/nationworld/nation/wire/la-na-wife21jul21,1,245
0435.story
Now ask yourself: could Bush have possibly picked a better nominee than one who (1) is unblockable by the hapless Senate Democrats, and (2) probably shares his wife's view that unborn children deserve more protection than old-timers like Sandy O'Connor would give them.
Enjoy the article. I found it very reassuring. ;)