Tuesday, December 13, 2005

Roe v. Wade: Should we chuck it?

It looks like we're all taking a bit of a break for exams, but I read an interesting article in this week's Economist. It argued that the Democrats would be better off if Roe v. Wade was overturned. The two central arguments: The decision has served as a lightening rod for social conservatives and has caused the court to get drawn into politics (note that Roe has almost taken over confirmation hearings, which used to be about judicial philosophy, &c). Also, since most Americans actually support abortion rights under most circumstances, losing Roe would only result in massive abortion scalebacks in a handful of states, most of which have few abortion centers anyway.

I support the concept of a right to privacy, but this is an alluring idea. If we dropped Roe, abortion rights would stop being a federal issue, and we wouldn't be appointing our Supreme Court justices largely on their religious views. That's appealing to me. And living in a state that is clearly pro-choice, I don't have to worry that overturning Roe will impact people close to me.

What say you all?

P.S. I didn't link the article because you'd have to have a subscription to the Economist to read it, even online.

13 comments:

Anonymous said...

What if people close to you WOULD be affected, Cato? It's a little disturbing that you're willing to give up a right, but only on behalf of other people.

Cato said...

Anonymous,

Well, it's true that I usually look to principles before pragmatics, and I'm diverging from that here. So I understand your confusion.

If I had my druthers, we'd see a right to abortion incorporated into a much broader privacy right in the Constitution. In fact, I'd like enumerated powers too. There's a lot I'd like that we don't have. I'm willing to give up on a Constitutionally recognized right to abortion here on the theory that it'll depoliticize the judiciary, and that the states will be able to make their own decisions on the matter. The fact that my state would make the right decision is icing on the cake. If I lived in a state that was likely to restrict the right, I'd be more immediately concerned, and hesitent. But that hesitence would be based on self-interest, not a different understanding of the principles involved.

If you've got a lot of problems that need solving, and you can only solve some of them, you pick your priorities. A depoliticized judiciary and a degalvanized religious right might be worth a "strategic withdrawal" on a right that most of the states aren't going to mess with.

After all, even without a constitutional right on a given issue, we've still got democracy to fall back on. Our rights are often protected by the democratic process even when they aren't by the constitution (Gun rights and property rights top this list).

If the majority of Americans are really pro-life, there's nothing that'll save Roe v. Wade in the long run. If the majority of Americans are pro-choice, it doesn't necessarily need to be saved, as the democratic process will protect that majority.

Dustin:
Thanks for putting that up. I like the fresh idea this article represents, and I wouldn't call them off their collective rockers, but I think they may underestimate the importance of constitutional rights in this country as opposed to most other democracies. I'm not entirely sold myself, but I've never liked how little Roe fits in with the rest of the Constitution. I'd rather the Court scrap it and write up a comprehensive and well-thought out right to privacy.

Orrin Johnson said...

Check Justice Scalia's dissent in Stenberg v. Carhart, the Supreme Court case that invalidated a state ban on partial birth abortion (something ROE itself specifically said COULD be heavily regulated). Aside from the usual abortion/Constitutional arguments, he notes that ROE has done more to undercut the overall authority and respect for the court than any other thing, and should be overturned if nothing else for the sake of the court's own self-preservation. I couldn't agree with him - or the Economist - more.

SirWhoopass said...
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PubliusRex said...

I'm not sure it's copyright infringement if you credit the source. But anyways....

Roe should be abandoned because it was an abominable decision. The court overreached and in so doing, placed within their hands enormous political pressures and politicized the only non (or least) political branch. I think that there are quite a few liberals that acknowledge this, perhaps even Ginsburg.

Orrin's right, Roe, and I'd venture to say the entire period from 1940-1980 obliterated the court's legitimacy and prestige. That's why the AFL-CIO has come out against Alito's nomination. Populating the court is just another political maneuver. As if the Constitution speaks on the labor movement....

Cato said...

Publius,

The Constitution does speak to labor concerns. Recall Substantive Due Process and the Freedom of Contract, now 70 years dead.

SirWhoopass said...
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PubliusRex said...

Exaggerate much? Bootleg? I'll be waiting for your check paying for access to this site.

I don't know that any of us are copyright experts, but I do know that it is not as simple as you seem determined to make it. See International News Service v. Associated Press, 248 U.S. 215 (1918).

Orrin Johnson said...

If you alter it in some way [such as posting an excerpt, even a lengthy one], it's not (arguably) infringement. I don't think they're going to sue us, but I think this probably wasn't altered enough, and they demand subscriptions (probably to avoid this kind of thing). I don't know if they could win the lawsuit, but it's probably something to think about in the future. Maybe we should ask the school's Copyright professor...

PubliusRex said...

INS v. AP actually does a pretty good job covering the contours in the property nature of the news and the property characteristics of writings published in newspapers.

SirWhoopass said...
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PubliusRex said...

Sirwhoopass: Given the nature of this blog, its educational context and its extremely limited readership, there is a colorable argument here for "fair use," not unlike my Family Law professor photocopying forty copies of a PI article and distributing it around.

All of which supports my original point, that copyright law is not quite as simple as the new absolute lines you seem to draw with each new post. I'm certainly no expert on the topic. Obviously, neither are you.

If you have more to post on the original topic, feel free, but at this point, the free legal advice and off-topic, condescending lectures are just wasting blog space. Perhaps it is time to consider moving on.

SirWhoopass said...
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