September 14, 2005

KUDOS TO THE LA TIMES:

Roe Ruling: More Than Its Author Intended (David G. Savage, 9/14/05, LA Times)

On the day the ruling was announced, Burger said, "Plainly, the court today rejects any claim that the Constitution requires abortion on demand."

Blackmun proposed to issue a news release to accompany the decision, issued Jan. 22, 1973. "I fear what the headlines may be," he wrote in a memo. His statement, never issued, emphasized that the court was not giving women "an absolute right to abortion," nor was it saying that the "Constitution compels abortion on demand."

In reality, the court did just that.

Blackmun had said that abortion "must be left to the medical judgment of the pregnant woman's attending physician." So long as doctors were willing to perform abortions — and clinics soon opened solely to do so — the court's ruling said they could not be restricted from doing so, at least through the first six months of pregnancy.

But the most important sentence appears not in the Texas case of Roe vs. Wade, but in the Georgia case of Doe vs. Bolton, decided the same day. In deciding whether an abortion is necessary, Blackmun wrote, doctors may consider "all factors — physical, emotional, psychological, familial and the woman's age — relevant to the well-being of the patient."

It soon became clear that if a patient's "emotional well-being" was reason enough to justify an abortion, then any abortion could be justified.

Legal scholars have long pointed to the shaky constitutional basis for a right to abortion. Blackmun referred to the 14th Amendment, which says that a state may not "deprive any person of life, liberty or property, without due process of law."

In earlier opinions, the court had said that liberty included the concept of personal privacy. "This right to privacy … is broad enough to encompass a woman's decision whether or not to terminate her pregnancy," Blackmun declared.

Earlier this year, 11 legal scholars, led by Yale's Jack Balkin, tried to write a better opinion. Their book of essays, "What Roe v. Wade Should Have Said," proposed several alternatives, such as saying sexual equality for women required a right to abortion.

Far less attention has focused on the all-or-nothing nature of the Roe vs. Wade ruling.

Today, as in the early 1970s, the American public appears to have decidedly mixed views on abortion. In a Gallup poll in May, for instance, only 23% of those surveyed said abortion should be "legal under any circumstances," the rule set by Roe vs. Wade.

Only 22% said abortion should be "illegal in all circumstances," the rule that could take effect in many states if the Supreme Court were to overturn Roe vs. Wade.

The largest group — 53% — said abortion should be "legal only under certain circumstances."

But Roe vs. Wade foreclosed this middle course — for the states as well as for the court.


You don't often see analyses this brutally frank about Roe -- stating that the majority didn't understand its own opinions and the public disagrees with the holding by such a huge margin -- in the news sections of the MSM.

Posted by Orrin Judd at September 14, 2005 8:14 AM
Comments

"You don't often see analyses this brutally frank about Roe -- stating that the majority didn't understand its own opinions"

A very charitable opinion. Of course the majority understood its own opinions. It just lied about them.

Posted by: Glaivester at September 14, 2005 11:27 AM

Lacking a uterus of my own, I'll never know what it would be like to be told that a legally protected third party is sloshing about in my abdomen. Asking women about it yields every possible answer, from "what third party?" to "my baby has rights." Nice to see that LAT can acknowledge reality on occasion.

Given the lack of a consensus by women, I do not think abortion should be illegal but should be better regulated that it is at present.

Posted by: Ed Bush at September 14, 2005 12:17 PM

Glaivester

You're correct except in the case of Burger. He actually was an idiot.

Posted by: h-man at September 14, 2005 12:24 PM

Burger and Blackmun were way too dumb to comprehend them. Brennan got it.

Posted by: oj at September 14, 2005 12:37 PM

Ed, I have both a uterus and the experience of entities sloshing around in my womb, not my abdomen and I disagree violently with your assessment that the process of giving birth or aborting needs to be regulated at all, nevermind further regulated by people like you, i.e., men. Abortion isn't a winning issue and I would hope Conservatives leave it alone.

I would move heaven and earth to avoid abortion, but I can make that decision with the help of my family and physician and I don't need a bunch ex-Rotarians from Paduca who happened to get themselves elected to congress to make that decision for me.

Posted by: erp at September 14, 2005 12:56 PM

erp:

The Right's rise to power coincides exactly with its becoming pro-life.

Posted by: oj at September 14, 2005 1:08 PM

erp:

It wouldn't be a problem if it wasn't murder, which in most societies attracts rather heavy regulation.

"Disagree violently" is definitely fitting.

Posted by: Matt Murphy at September 14, 2005 1:56 PM

I was taking constitutional law in law school when Roe was originally decided. We dissected the decision mercilessly. I don't recall anyone having anything nice to say about it. It was and remains hackwork, and it cannot be patched up.

Posted by: Robert Schwartz [TypeKey Profile Page] at September 14, 2005 2:56 PM

erp:

Don't you have a little trouble squaring the proposition that a woman should have exclusive and unfettered authority to decide whether to have an abortion with the principle that a man has no choice but to support the child if she decides not to? If she has a say as to whether she will raise it, why doesn't he have a say as to whether he will support it?

Posted by: Peter B at September 14, 2005 4:01 PM

I disagree violently with your assessment that the process of giving birth or aborting needs to be regulated at all, nevermind further regulated by people like you.

erp:

Well, men used to feel the same way about the state getting involved with their right to beat their wives or their children. And slaveowners with their slaves.

Posted by: John Thacker [TypeKey Profile Page] at September 14, 2005 4:04 PM

erp,

You're right about the abdomen. It stops above the pelvis.

My post attempted to excuse myself from having an opinion about the rightness or wrongness of abortion, much less imposing one. Morality no longer has much force anyway; only the law does. My sarcasm about sloshing was to indicate that on a truly visceral level, men are completely without direct experience of pregnancy. Their thoughts on the matter of being so are utterly imaginary and should not carry any weight.

Please direct me to the data if I am misinformed, but the absence of unanimity among women about abortion is stunning to me. In a republic, the absence of unanimity frequently results in compromise. All I did was acknowledge that and did not discuss the hows, whys, and whens of regulation.

I am sorry to have caused offense by commenting on a subject about which I cannot have any direct experience and therefore absolutely no right to address.

Cordially,

Ed

Posted by: Ed Bush at September 14, 2005 4:19 PM

Oj, The right can and should be pro-life, but that doesn't mean that I think abortion should be debated on the floor of the congress, nor do I think legislators should impose restrictions and rules on things that should be decided in the privacy of one's doctor's office.

Ed, now don't get touchy on me. Who said you caused offense? Certainly not I. You have every right to address any issue you want, and I support that right even if I disagree with everything you said. I don't know why you think it so odd that women don't agree on this matter. I'd be surprised to find that women, or men for that matter, all agree on anything.

As you correctly pointed out, you were the one who brought your abdomen into the discussion. I said with "with the help of my family," the putative father was included in that grouping, but to make it very clear, the father is very much a part of the decision making process. The need for abortions should be very few and far between. No more tax payer funded abortion clinics on street corners.

I've said this before and I'm sorry if it's repetitious and boring, but the culture of abortion isn't about whether killing an unborn child is murder or whether the entity sloshing around in a womb is just a nonviable mass of tissue, it's about the ease of using abortion as a convenient less demanding method of birth control that is 100% effective. It trivializes the process, removes the father from the discussion and, in my opinion, dehumanizes the woman using abortion in this way.

I believe that a potential human being is created instantly as the egg is fertilized, but don't want to move past that point and get into the numbers game you guys like to play. Even so, I also believe there will always be circumstances that compel an abortion. I would like it to be the very last resort, not the simple expedient it has become.

Posted by: erp at September 14, 2005 5:37 PM

erp:

If government doesn't protect the weakest people in a society who will?

Posted by: oj at September 14, 2005 5:42 PM

erp,

I'm sorry for being sorry for thinking I gave offense. I misinterpreted your "violent" disagreement as coming from one who had experienced a slight from my words.

For my part, I try to be a humble man of peace, albeit with the occasional dark turn of phrase.

Kinda like John Roberts.

Cheers

Posted by: Ed Bush at September 14, 2005 5:58 PM

Ed, you have not caused me offense, but the idea
you are sharing bothers me. If this idea(you can't
comment or address, have an opinion that can be shared or acted on, unless you have direct experience with the item or act under discussion)
were to become part of the public process, it would
be the end of any kind of democratic goverment.
Do you believe that only rapists and the raped
may comment on the act of rape? If not, why not?
You are talking about politics. Have you ever been a elected official? If you haven't, why do
you comment on a subject you have no direct experience with and therefore absolutely no right
to address. I know I am belaboring the point, but
I have seen this idea being used to silence men on
abortion for some time now and I believe it is bogus both in theory(see above) and in practice.
Men are responsible for the children they help
create for 18+ years, by law. Women are never responsible for the children they help create, by
law. It would make more sense to say that women
cannot discuss abortion until they become legally responsible for their actions.
I have seen in Japan, little stone statues of children, dressed in dolls clothes, given toys, tickets to disneyland, and other elements of childhood. This is done, in a land with no religious right, no pro-life movement, because they had an abortion, but can't forget the child they murdered, and are trying to quiet the hole in
their soul. But I can't share this little corner of Hell, because I can't carry a child....

Posted by: Robert Mitchell Jr. at September 14, 2005 6:00 PM

erp: I'm not sure I understand your position or how you want the law to be crafted. Which part is compulsory and which is not? Would women be forced to attend family therapy sessions? Who has the final say?

In any event, almost no one argues that Congress should set the rules. In the absence of Roe, the state legislatures would set the rules, as the did before. Some states would have abortion on demand and some would prohibit abortion entirely except to save the life of the mother and in cases of rape or incest. Most would fall somewhere in the middle. That's democracy.

Posted by: David Cohen at September 14, 2005 6:42 PM

erp:

Well said.

Robert Mitchell:

To be honest, your poignant plea on behalf of the unborn seems to spill over quickly into a whine against women and how unfair it all is. Your claim that "women are never responsible for the children they help create by law..." is outrageous. I practice family law and I've heard your complaint many times before, mainly from men that think it is woefully unfair that their lives have been upset by the children they conceived.

To the extent that my challenge to erp led you on, let me make myself clear. My point was that both sides should drop the freedom cant and be made responsible (yes, to some degree by coercion) for the consequences of their actions, not that men should get off simply because women do. But let's not pretend there is any symmetry at play here. Abortion or no abortion, whatever the outcome, it will fall most heavily on women. Current abortion laws have much more to do with the abandonment by men of their children than with any Gloria Steinem-inspired theories of liberation.

Posted by: Peter B at September 14, 2005 6:55 PM

Robert C. To answer your question. I don't want a law to be crafted at all. I wish I could be more eloquent in presenting my case. It's not that radical.

I don't want any legislature, be it state, federal or the local selectmen to be involved in what is a strictly personal matter. Counseling, certainly if the people involved feel the need. Forced counseling? No. Who makes the decision? The people involved of course.

oj, who will protect the weakest among us? If you mean the unborn, then it should be his or her parents. Should they be deemed unfit, insane, unable to make decisions because of an accident and they have no family or clergyman to step in, why then the court must appoint an advocate for the unborn child. These are individual tragedies and we don't need to enact sweeping legislation to deal with them on an individual basis.

Fetuses in the news: h/t Best of the Web, "But Alan Dershowitz, Harvard's most socially rough-edged law professor, goes even further. To his mind, according to the Harvard Crimson, life doesn't begin until sometime after the 206th trimester of pregnancy: In a stab at the 50-year-old [John] Roberts, who, if confirmed, will be the youngest chief justice in 200 years, Dershowitz said, "Today, they're trying to nominate fetuses in the hope that they will be kept alive like [Terri] Schiavo."

Just when we thought the left couldn't stoop any lower, the good professor proves us wrong again.

Posted by: erp at September 14, 2005 7:55 PM

erp:

They're unfit at the point they're going to kill the kid, but it's too late if there are no laws protecting them.

Posted by: oj at September 14, 2005 8:00 PM

Peter, Thanks for your response. I'm sorry if you read a whine out of my statement; I was not complaining, just stating the facts as I see them.
Women can abort the 'not a child yet'. Women can put the child up for adoption. Then there are foster homes and dumping the child on her family.
Men are held to be responsible for the child the moment it's concieved, or he signs the birth certificate. Once this responsiblity has been picked up, I am not aware of any legal way for the
man to put it down. You mention abandonment of children by men. That is illegal. If you(the abandoning man) are found, your pay will be docked,or you will go to jail.
I am not saying it is unfair to disrupt the man's
life by making him responsible for the child he helped create. That's part of being a adult.
I would never date a woman if I could not be
sure any resulting child was brought to term. Since you practice family law, perhaps you could give me a hint on how to do that, legally.
I am pleased that you belive that there needs
to be more responsiblity for actions. My point
was not that men should be freed from their actions, but that women should live up to theirs.
I do agree that the outcome of abortion falls more heavily on the murdering party(the point of my little travelog). But to say that the woman
is more responsible for the child under law, I can't see it. If you are going to allow the destruction of children under law, as we do now,
men should get a veto(to stop the abortion) or
they should not be held accountable if the child is born. I want the first choice, but if you do not agree, the current system is child at conceiption for the man, fetus until fully born for the woman. I could not stand and watch my child be killed, but that is what the law demands.
To state that I can not discuss abortion because
I am not a part of this, that my 18+ years of support and legal responsiblity is completly trumped by the woman's 4+ months of discomfort;
I object to that line of reasoning; I object to
the idea that men can't discuss abortion because
they don't carry children. All the men I know do
carry their children, just not in the womb. Why are they to be silented?

Posted by: Robert Mitchell Jr. at September 14, 2005 8:15 PM

Robert: Having sex with a woman is putting your future in her hands. No doubt that's why people do it when they're drunk.

Posted by: David Cohen at September 14, 2005 8:37 PM

Thank you David. I agree. Fortunately my soul leans to sins of omission. It would destroy my soul to stand there and watch a woman murder my child because she had a nightmare and got scared.

Posted by: Robert Mitchell Jr. at September 14, 2005 8:46 PM

Robert,

Although,I don't hold with abortion in most cases, I think it should remain legal with restrictions. I admit that I wrestle with the human rights that should be extended to a person living inside another person and how the larger of the two feels about it. It is mysterious. In contrast, I know what theft is, whether it is taking property or life, and consider it morally wrong even though I don't know how the thief feels about it. So I'm inconsistent. Sue me.

My moral viewpoint on abortion is largely irrelevant to anyone but me. When I do find someone in agreement I think "what a happy accident." But I don't expect it. What I usually hear is "I've never had an abortion, but it's a woman's basic human right to keep the deeply personal decision to terminate a pregnancy between herself and her physician. Or "I have the right to control my own body." These are considered moral positions, too. Everyone is on the right side of morality these days.

I can't be bothered countering this crap anymore. For my part I'll just continue to make sure I don't cause anyone to need an abortion. I can do that. Beyond that I don't care. I've no plans to thump a tub and scream that abortion is murder, As for women who find themselves in that predicament, they're on they're own. Whatever they choose, they'll have the blessing of a pluralistic, secular society if not that of a Higher Authority.

Posted by: Ed Bush at September 14, 2005 9:07 PM

Thank you for your response Mr. Bush. I understand your position, and tried to follow it in the past. But the world has a way of dragging us back in. While I quite dull, dull looks responsible to others looking in. I have never caused anyone to need an abortion, so those less responsible came to me for help(being the calmest not parent they knew). It was a false alarm, but it showed that ignoring the issue was a pipe dream.
That, coupled with the temple in Kamakura, forced me into the corner I stand in now. Of course, by law, the women you mention never have to stand alone. Do you care about that?

Posted by: Robert Mitchell Jr. at September 14, 2005 9:32 PM

Oj. Unfortunately, there are people who kill children. We have all kinds of laws against it, but yet perverts sexually assault, torture and mutilate children as young as months old. Laws can't stop unfit and insane people from committing atrocities. Only the vigilance of those who love them can safeguard children and even then bad things can happen.

This has nothing to do with what I'm talking about. You may think I'm wrong, but at least speak to what I'm saying, not your automatic response when the word abortion is mentioned.

The point I'm making is that women are using abortion as a convenient after-the-fact birth control method that carries no stigma in their world and it's dehumanizing them.

The morality of killing a fetus is a totally different discussion. I'm against it except for the most compelling reasons to be decided by the principals, not the government.

Abortion as a tool of leftwing politics is another totally different discussion. It's anathema that the feminist moonbats have convinced weak-minded women that because they own their bodies, they should be able to do whatever they want with them, including the casual destruction of their unborn babies.

These foolish women have been convinced that this right to an abortion is the pivotal issue in the world today and they must fight tooth and nail against even the slightest suggestion that this "right" might be taken away from them. Women who buy this preposterous argument are probably beyond the help of us mere mortals.

Posted by: erp at September 14, 2005 11:07 PM

Robert,

There you stand. You can do no other. But the law does not stand with women, unless not sending them to jail constitutes some sort of solidarity. By making abortion completely legal, it allows them to stand alone, save for their hired, pro bono, or state supplied ob gyns, to make that deeply personal decision, free of coercion. That's part of the reason it is so often ardently referred to as choice. Even in the euphenism-laden world of abortionspeak, people have not as yet startied referring to it as forging a consensus. One can't rule out it being called a triumph of the will, at some point, though.

As to Kamakura, my relative unfamiliarity with Shinto prevents me from understanding remorse rituals surrounding abortion in Japan, touching though they are.

As for sorrowful, no-longer-prospective fathers, would that more women had one. Too often men don't care about their responsibility, much less suffer about it. But giving women the ability to decide whether to have a baby was partly intended to compensate for those absentee men.

That women can get pregnant and men cannot is a fact of biology. Having a caring man or woman vicariously sharing the experience does not change things. If a woman chooses to confront that fact with tooth and claw however, neither biology nor the law will stop her. The choice is hers and hers alone. She is truly on her own.

I am not a compassionate conservative, just a clear-eyed one.

Regards

Posted by: Ed Bush at September 15, 2005 12:34 AM

erp:

It can't be both immoral and improper for it to be illegal.

Posted by: oj at September 15, 2005 2:03 AM

Look at all the arguements coming from the pr-death side: nothing about "rape and incest," nothing about "life of the mother," nothing about serious birth defects.

The discussion is about social and economic convenience. People are quibbling about child support issues and about the personal and economic discomfort of having a child out of wedlock.

It is well that the unborn do not have gold teeth.

Posted by: Lou Gots at September 15, 2005 5:57 AM

Mr. Bush, thank you for your thoughts, but I don't see how you can say that the law does not stand with women. I have never seen any limits on adoption(on the women's side. I am not aware of any states that do not support single mothers. I understand there are dozens of Federal programs to aid single mothers. What would legal support for women look like to you? What would the law have to do for you to say 'Let the baby live'? You complain of irresponsible fathers, but given the current legal set-up, what responsible man would date?
As far as the ability to decide whether to have a baby, wasn't that decided when the sexual act was begun? You seem to be saying that women are not adults when it comes to sex, and are when they are making 'their choice'.
If you belive that women are truly on their own,
then make abortion illegal. She can perform the act in the privacy of her room, and dispose of the
body in quiet. Who will know? Well the doctor, of course. And the father, more then likely. Probably her Mom. Maybe a few good friends.
This seems to work well. The more support she has, the more likely she is to get caught. A self -correcting process. Justice is served!

Posted by: Robert Mitchell Jr. at September 15, 2005 11:42 AM

oj. You stumped me with this one.

I can't fathom the meaning of "It can't be both immoral and improper for it to be illegal." Can you re-phrase this please?

Posted by: erp at September 15, 2005 1:19 PM

Oj. Unfortunately, there are people who kill children. We have all kinds of laws against it, but yet perverts sexually assault, torture and mutilate children as young as months old. Laws can't stop unfit and insane people from committing atrocities. Only the vigilance of those who love them can safeguard children and even then bad things can happen.

This has nothing to do with what I'm talking about. You may think I'm wrong, but at least speak to what I'm saying, not your automatic response when the word abortion is mentioned.

The point I'm making is that women are using abortion as a convenient after-the-fact birth control method that carries no stigma in their world and it's dehumanizing them.

The morality of killing a fetus is a totally different discussion. I'm against it except for the most compelling reasons to be decided by the principals, not the government.


It can't be immoral to kill a child but not a fit thing to make illegal.

Posted by: oj at September 15, 2005 1:58 PM

I see the problem now. What I mean is the discussion of the morality of killing .... is an entirely different matter. I am obviously against the killing, not the discussion or the debate. Where we differ is I don't necessarily think my idea of what's moral or ethical needs to be made the law of the land.

Abortion has no easy analogy and no moral equivalency so beloved by the left. The nearest thing, capital punishment, is a tortured comparison that I reject. I've given it a lot of thought to this issue and I think removing the issue of legality and closing down tax payer funded abortion clinics will save a lot more of the unborn than the strictest laws you can write.

Conservatives can mount a positive campaign urging women to use birth control and making it easy for women who are pregnant to arrange for adoption, etc. Men must be brought into the picture as well. The various religions can also add their voices, but the entire campaign shouldn't slant toward God or religion. It will turn people off. There's a lot that can be done in a low key way to put a human face to this issue that we've allowed the moonbat feminists to demogue for decades.

Shrieking "baby killers" at women going into abortion clinics is counter productive as are ads and posters of partial birth abortions. There must be an attitude shift. Abortion must be shown to be a last resort, not the first responder.

Posted by: erp at September 15, 2005 2:48 PM

Thank you for your response Erp. The problem I have with your position is: What basis for the Law will you use if you remove morality or ethics from the stage? Morality or raw power seem to be the two choices. What is your third way? Second, the men are already in the picture. Right now the picture looks to me: Men have responsiblity but few or no rights; Women have rights but few or no responsiblitys.
If you remove Morality from the picture, why are the men to be held accountable? From a power viewpoint, if the woman chooses to have the child,
she is the only one responsible. Why is the man paying child support? From the moral viewpoint, why doesn't the man get any say in the life of his
child, one he will be responsible for a generation? Until men and women are treated equally responsible or irresponsible in the eyes of the law, there will be no peace(I think).
As far as a conservative campaign, I think that
encouraging women to have children and bringing voices to the public eye, showing how wonderful working with 'your accident' can be. Women have been sold a bill of goods(that abortion will end the shame and guilt of her irresponsiblity). That was the point of my little travelog story. Few women are souless enough to forget the child they murdered. On the other side, the accidental child is often the most loved. We should remind people of this little truths.

Posted by: Robert Mitchell Jr. at September 15, 2005 4:16 PM

Men do get a say in the lives of their children, even if they aren't married to, or living with, the mother.

To say that women have no responsibilities is absolutely incorrect, since they have to raise their children.
That's quite a big job, and although a child support check is helpful, it's only an aid, not a help-mate.

The only situations in which it would be true, is if she has an abortion, or gives up the child to the father.
If the former, then neither parent has responsibilities, and if the latter, then the male has both the responsibilities and the rewards.

Posted by: Michael Herdegen [TypeKey Profile Page] at September 16, 2005 4:06 AM

I'm sorry I wasn't clear. When I said men have
no say in the lives of their children, I meant they don't get a choice when it comes to killing them. I was being literal. As to the second part of Mr. Herdegen's post, Women don't have to raise their children. There is abortion and adoption, and I'm not aware of any restrictions on either.

Posted by: Robert Mitchell Jr. at September 16, 2005 6:05 PM
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