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After South Dakota Pt. II: Stand Up For Roe

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As most of you know, pro-life rhetoric in the U.S. is, more than anything, focused on diversion, using the language of states’ rights or "reasonable regulations" to advance their agenda of banning abortion entirely. Perhaps the most common strategy is to argue that "everyone knows" that Roe is wrong, and therefore everyone should agree that it’s illegitimate (although, mysteriously, this rhetoric temporarily vanishes when a Supreme Court confirmation hearing is in progress.) It’s important for pro-choicers to understand that most of these claims about Roe are false. In the course of his celebration of South Dakota’s legislature using illegal means to compel young women to give birth to their own sisters, Captain Ed offers a typical example, arguing that "[n]o one these days defends the basic legal framework of Roe, with even Justice Ruth Ginsburg noting its legal flaws." First of all, is it true that "nobody" defends the "basic legal framework of Roe? Sadly, no! (TM) As Justice Stevens pointed out while explaining the egregious unconstitutionality of the cutting-edge anti-choice diversionary technique of passing irrational bans of what they call (using a scientifically meaningless term) "partial birth abortions":

Justice Ginsburg and Judge Posner have, I believe, correctly diagnosed the underlying reason for the enactment of this legislation–a reason that also explains much of the Court’s rhetoric directed at an objective that extends well beyond the narrow issue that this case presents. The rhetoric is almost, but not quite, loud enough to obscure the quiet fact that during the past 27 years, the central holding of Roe v. Wade has been endorsed by all but 4 of the 17 Justices who have addressed the issue. That holding–that the word "liberty" in the Fourteenth Amendment includes a woman’s right to make this difficult and extremely personal decision–-makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty.

And who are the judges who joined or voted to affirm a holding that every reactionary call center manager in the country knows to be indisputably wrong? These radical Trotskyites include 3 of Nixon’s 4 appointments, Ford’s only appointment, 2 of St. Reagan’s 3 appointments, and 1 out of the first Bush’s 2 appointments. That’s one far-reaching conspiracy to subvert the law! Morrissey also is highly misleading about Ginsburg’s argument. Ginsburg never disputed the correctness of the holding in Roe; she just argued it would have been preferable to decade the case on equal protection grounds. It’s true that most people have serious criticisms about the quality of Blackmun’s opinion in the case–I certainly wish that the opinion had been more along the lines of Douglas’ opinion in Doe or Stevens’ devastating rebuttal of White in Thornburgh–but the fact that an opinion doesn’t exhibit perfect craftsmanship (which is hardly unusual, even among landmark opinions) is not to say that the outcome of the case is wrong. So why does Morrissey think that the opinion is indefensible? In an earlier post, he says:

And in all honesty, Roe was bad jurisprudence, no matter what one thinks of the outcome. The reasoning behind Roe allows any Supreme Court at any time to declare anything unconstitutional, as long as five jurists can find an emanation from a penumbra of a out-of-context piece of text that may or may not have anything to do with the issue at hand. It certified a procedure that should have a fancy name in Latin, but it would nonetheless mean "making it up as we go along". Without a doubt, the South Dakota legislature would not have attempted to do this ten years ago with the composition of the Supreme Court at that time, but now they feel they have as receptive a panel as they are likely to ever have.

First of all, as many of you know the "penumbras and emanations" language appears nowhere in Roe v. Wade. While the decision cites Griswold (the case where the language actually appears), Blackmun’s analysis (such as it is) relies not on Douglas’ majority opinion but on the due process reasoning of the concurrence written by Warren Court house conservative John Marshall Harlan. This helps to clarify what Morrissey and so many armchair critics of Roe are up to. He is not making the perfectly reasonable "pull the thread" argument against Roe, which accepts that court’s decades-long recognition of a fundamental right to privacy but simply argues that it does not apply in the particular case of abortion. Rather, he’s saying that any structurally inferred right to privacy is nonsensical. In other words, to Captain Ed, forced abortions, forced sterilization, bans on the use of contraception–all perfectly legitimate exercises of state power because the Constitution does not prohibit them in exactly those words. He’s welcome to this view, but to claim that virtually nobody disagrees with him is ridiculous.

And so, of course, as I explained in excessive detail last year (1, 2, 3) Morrissey’s claim that "The reasoning behind Roe allows any Supreme Court at any time to declare anything unconstitutional" is just ahistorical nonsense. Reasonable people can disagree, but to argue that applying long-established rights involving educating children, forced sterilization and contraception to the directly related area of abortion provides unlimited judicial power is silly. The holding in Roe is a perfectly logical application of precedents that are well-established, and there’s no reason for pro-choicers to be defensive about it.

And, of course, under the second Bush administration the accusations of "judicial activism" (i.e. "judgifying I don’t like") ring especially hollow. It’s not just that the conservatives on the Rehnquist strike down more acts of Congress than any Court since the New Deal, or have no problem playing in the penumbras and emanations of the 11th Amendment in order to assert that the state universities have legal immunities similar to those of 17th century British monarchs. There’s the decision that put George Bush in the White House. The completely indefensible Bush v. Gore 1)was entirely unprecedented, 2)involved a majority putting narrow partisan interests ahead of long-held legal principles (including two justices who read the equal protection clause so narrowly that they don’t believe it applies to gender discrimination but invented a new right to have ballots cast under different systems counted under uniform standards), and 3)was so unprincipled that not only did they decline to apply the newly-minted right to future cases but weren’t even willing to provide a logical remedy in the case itself. None of these things are true of Roe v. Wade: it applied an extensive body of relevant precedent, was an expression of sincerely held (though contestable) legal principles, and the justices in the majority logically applied the principle in both that case and future cases. So if Roe v. Wade is illegitimate "judicial activism" that state governments are right to nullify, Bush’s presidency itself is something well beyond illegitimate. Somehow I don’t think we’ll be hearing this from many of Roe’s amateur critics.

Pro-choicers have no reason, in other words, not to fight for Roe. The decision was right, and many of its critics have no idea what they’re talking about. Don’t back down.

(Cross-posted to L, G & M.)

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Scott Lemieux

Scott Lemieux