The Day Choice Died
Posted by
tgirsch
Mark the date. In all likelihood, July 1, 2005 will be remembered as the day women’s choice died. Sandra Day O’Connor, a key swing vote in right-to-choose cases, has retired from the Supreme Court. If Rehnquist had retired, it would have been no big deal. But O’Connor is one of the few principled moderates on the bench and now she’s gone. I guaran-damn-tee you that Bush isn’t going to nominate another moderate. He might even have the stones to try to immediately elevate Pryor or Brown.
Here’s where we learn whether the nuclear compromise paid off.
If it doesn’t, then all you pro-choice security moms who voted Bush out of fear that the terrorsts would get us, thinking that the illusion of security was more important than actual liberty; all you moderate pro-choice Republicans who voted Bush figuring he would never really do anything to overturn Roe v. Wade; all you third-party types who abstained or threw votes away because “there’s no real difference between Republicans and Democrats”; all you apathetic voters who didn’t bother to show up in November at all — this will be laid directly at your feet.
Of course, there’s more at stake here than just women’s choice. Privacy, church/state separation, the enviornment, and gay rights also spring to mind, and any Bush nominee is likely to fuck those up, too.
UPDATE: SayUncle takes me to task in comments for not actually using the word “abortion” in the above post. Like it or not, abortion is an important part of female autonomy over her own body. Abortion abortion abortion! Happy now? (FWIW, Uncle claims to support abortion rights, while denying that they should be constitutionally protected.)
Yep. This scares the hell out of me.
Comment 7/1/2005
I predict a huge rise in the sale of wire hangers.
Comment 7/1/2005
Wow, you mean they will lose the right to choose coca-cola over pepsi? That whole post and not one use of the word abortion?
I doubt this is a blow to Roe, in all honesty. I could be wrong. Of course, I think abortion should be legal but Roe is a crap ruling.
Comment 7/1/2005
The Day Choice Died ?
Please … are you really that out of touch as to think that majority of “moms” are more concerned about some minor
adjustments regarding so called “choice” than they are about economy and security ?
Aa far as abortion , not much will change with possible exception regarding late abortions and perhaps parental notification.
No wonder left is losing every darn election these days ..
Comment 7/1/2005
tgirsch -
Enough of the melodrama! Enough of the spin!
Even if you haven’t been able to keep up with the voting
breakdown of the abortion cases, certainly y’all on the Left
can read. As Jonathan Turley and C. Boyden Gray have pointed
out numerous times, O’Connor’s vote doesn’t swing the Court
so that Roe is overturned. Neither will Rehnquist’s
retirement. It is likely that Bush would have to appoint
THREE Supreme Court justices to see Roe overturned.
Pick another issue to scare people with, because this one
isn’t a winner.
Cheers,
Rob
Comment 7/1/2005
Empty seat at SCOTUS - O’Conner retires
And the war is joined. Two immensely powerful forces meet in the political equivilant of toe to toe nuclear combat to fill the seat. What great entertainment this will be. Warning: Don’t misunderestimate the Chimpster, again.
Trackback 7/1/2005
Reaction From The Left-Side Of The Blogosphere To O’Connor Stepping Down
“Sandra Day O’Connor has retired. This is going to be bloody.” — The Washington Monthly “Mark the date. In all…
Trackback 7/1/2005
Don’t be a dumbass. Planned Parenthood v. Casey, which reaffirmed Roe v. Wade, was a 6-3 decision. Kennedy is a supporter of abortion rights as well.
With this vacancy, it’s 5-3, and that’s counting Rehnquist.
Comment 7/1/2005
Three justices? Well, he’s got about three years left. Rhenquist is getting tired. I doubt he’ll last out the next year. That leaves one more. Who’s likeliest to step down in the next few years? And which way does that justice lean?
Comment 7/1/2005
When did public policy become the province of the courts rather than the legislative branch?
Before Roe, abortion was legal in California, New York, and Massachusetts, and the momentum was in place for the rest of the states to legalize it as well. If the court had never stepped into abortion, it would be legal in virtually every state by now, and the courts wouldn’t be so politicized that we have to examine the legislative resume of every proposed judge.
However you feel about abortion (and I think it should be legal and free), an honest assessment of Roe has to conclude that it’s the worst decision by a Supreme Court since Plessy.
And running these scare tactics just makes things worse. Sober up.
Comment 7/2/2005
Nobody has mentioned this anywhere, so think hard about this. The court isn’t interested in Roe v. Wade as much as Griswold v. Connecticut. In Griswold, the court found there is a RIGHT TO PRIVACY implicit in the constitution. The narrow reading of the case is that we have a right to use contraceptives. This ruling sets up Roe and a string of other cases that led to Lawrence v. Texas (statute outlawing sodomy is a violation of our liberty).
There is much more at stake than even most conservatives realize. Even though one appointment isn’t going to affect the outcome, Bush may have the opportunity to appoint 3 judges to the SCOTUS (Justice Stevens is 85).
Comment 7/2/2005
I am a Republican who thinks that Richard Bennett is absolutely right… and the left is getting WAY too hysterical about Roe… and any other abortion decisions.
Trashing Roe, etc, will NOT make abortion illegal, and people who hope it will are as wrong as people who worry that it will.
Overturning Roe, etc will do absolutely NOTHING but return the decision to the States.
Should the decision be returned to the States? Of course. Roe is an absolutely lousy piece of judicial work. So are all the others.
But… the BIG point is that overturning Roe, etc will make electable people responsible for the decision of whether abortion should be legal, completely illegal, or some combination (most likely result is abortion legal in all or most states with some limitations).
Whichever way the polls go… and public opinion polls make it appear that very few states would EVER ban abortion completely… is the way it should be looked at.
Liberals… keep showing us those public opinion polls that say that the majority of the country wants abortion to stay legal. That is the PROOF that overturning Roe, etc will do no harm at all. It will stay legal. I personally can’t think of a single state that would actually ban abortion completely. Those state legislators have to be re-elected, you know. If they made a law that was contrary to the majority that you keep showing on all those opinion polls, they’d lose their jobs in a heartbeat
.
You see, overturning Roe would give the decision back to the People… and your voice is 50 times stronger and louder in your home state than it ever will be in Washingon. You are, in fact, more likely to have your opinion actually HEARD in your state.
Comment 7/2/2005
As a gay man, it’s the right to privacy that scares me. Lawrence v. Texas could be very shortlived. What’s more, with more conservatives justices appointed — and the rhetoric of putting civil rights to a majority vote — the judicial route to justice will be largely closed to minorities seeking civil rights that the majority doesn’t necessarily want them to have.
Might, in numers, will finally equal right.
Comment 7/2/2005
Listen to Mamapajamas, Mama always knows best.
Comment 7/3/2005
I’m not convinced that civil rights should ultimately be put to a majority vote.
Comment 7/3/2005
Uncle:
Huh, I guess I didn’t notice that I didn’t use the word. Oh, well. Abortion abortion abortion! There.
By the way, the only part of the Roe ruling that’s crap is the seemingly-arbitrary first trimester cutoff. Most of the rest of it seems to follow from the right-to-privacy precedent set by Griswold (as Simon points out).
warmi:
I would hardly call criminalization a “minor adjustment.”
Others:
Two things here: I don’t think the court will overturn Roe, but I don’t think they’d have to, because a Republican legislature could pass highly-restrictive anti-abortion laws at the federal level, and the president would sign them, and the sans-O’Connor court would be likely to uphold them. It wouldn’t matter what the states wanted to do.
And whether or not Roe is overturned, do you really think the “pro-life” movement is going to settle for letting the states decide? If so, you’re nuts. Even if the states did get to decide, there would be a whole lot of red state teenagers looking for coathangers and hefty bags… (going to an abortion-legal state wouldn’t be an option for them).
Lastly, I’m with Terrance: Civil liberties and personal autonomy issues should not be subject to the whims of the 51% (no matter who controls the 51%).
Comment 7/5/2005
Correct me if I’m wrong, but way back in the day when O’Connor was put on the bench, wasn’t everyone all in a flutter because of what a conservative judge she was? When did she become a moderate? Has somebody been slipping Rip Van Winkle pills into my juice again?
Comment 7/6/2005
Jillian:
As some have pointed out here, whether a jurist is liberal or conservative is not determined by who appointed them, or even by what people thought about them when appointed, but by how they rule. O’Connor ruled like a moderate conservative.
All:
A more general thought: How do my complaints amount to “scare tactics” when they describe stated goals of conservatives in looking for “ideal” justices? It’s not a scare tactic to point out what your opponents say they want to do. Criminalizing abortion, relaxing environmental regulation (and pretty much any regulation), codifying homosexuality as immoral, wrong, and unprotected, and weaking (if not eliminating) church state separation are all stated goals of the modern conservative movement.
Comment 7/6/2005
No, but it is scare tactics to say that 6=5 or 3=4. “Realiity Check” got a detail wrong, but his basic idea is right. Planned Parenthood v. Casey was actually a 5-4 decision, but one of the dissenting four, Byron White, retired a year later to be replaced by Ruth Bader Ginsberg. The only other personnel change was to replace Blackmun with Breyer, pro-abortion Roeists both. So contrary to the popular meme on the left, the pseudo-constitutional right to abortion didn’t die on July 1, 2005, nor will it die with Chief Justice Rehnquist’s expected retirement. The only way it could conceivably happen on Bush’s watch is if a third Justice such as Stevens or Ginsberg were to retire as well - and then only if Bush can resist his uncontrollable urge to appoint Alberto Gonzales all three time.
Comment 7/6/2005
Of course, with all the talk about “Roe wouldn’t be overturned,” let’s not ignore the fact that Stenberg would be. The battle lines for the anti-abortion would be clear: You can’t ban abortion wholesale, so let’s ban it one method at a time. And for what it’s worth, Kennedy’s dissent in Stenberg makes me wonder a bit whether he would still rule as he did in Casey in 1992, given another opportunity. It’s also worth noting that while Casey didn’t overturn Roe, it did open the door for more situational restrictions on the right to obtain an abortion prior to fetal viability.
Comment 7/7/2005
True, but Stenberg went way beyond Roe. It’s a stretch to throw around the word “choice” as a euphemism for abortion generally, but it’s a huge stretch to use it as a proxy for partial-birth abortion, which all but the most fanatical pro-abortionists oppose. Maybe you should change the heading to “The Day a Woman’s Right to Murder Her Half-Born Baby Died,” though even that could ultimately prove false (if, say, Bush were to settle on some guy whose initials match those of the phrase “attorney general”).
Casey allowed some regulation, but so did Roe. I’m not sure what room for regulation is left after Stenberg, though.
Comment 7/7/2005
So-called “partial-birth” abortion is widely opposed in large part because it’s misunderstood, thanks in large part to a great deal of misinformation spread by both sides (but mostly the “pro-life” side). The procedure is very infrequently used (statistics vary, but most estimates range from 2,800 to 4,000 procedures per year). And the technique is most often used because of health risks to the mother and badly deformed or dead fetuses (often only detectable later in pregnancy). Banning the procedure would do almost nothing to stop “convenience” abortions, and do a great deal to prevent legitimate medical treatment (unless you think protecting a woman’s health or terminating a badly malformed pregnancy to be illegitimate — which, apparently, you do, given your labeling of the procedure as “murdering [a] half-born baby”).
The radical, ultra-left-wing pro-murder* American College of Obstetricians and Gynecologists opposes such bans, noting:
[Italics in original, bold added.]
It should also be noted that the two next best alternatives to D&X are generally hysterectomy, which not only kills the fetus, but prevents the woman from ever having children; and emergency C-section, in which the fetus is surgically removed and allowed to die outside the womb. Something tells me pro-life folks wouldn’t be too happy with either of these alternatives, either.
Is the D&X procedure unpleasant? Of course it is, but then so is all abortion, and so are many other surgeries, for that matter. But the D&X method is often the safest for a woman who is terminating her pregnancy in its later stages for the reasons listed above. Now if you oppose late-term abortion, that’s all well and good, but go ahead and say as much, and recognize the implications for the problems listed above.
And for what it’s worth, I am on record as not opposing a law banning late-term “convenience” abortions. Although I suspect such a law would be wasteful, since such abortions are relatively rare, I don’t have a problem with banning abortions after 18 weeks except in those cases listed above (but those “exceptions,” I’d wager, would turn out to be the vast majority of post-18-week abortions anyway).
In any case, the standard for regulation after Stenberg was pretty clear, IMO: allow appropriate exemptions for the health and safety of the mother and use more specific language concerning the procedure to be banned. See O’Connor’s concurrence. The “pro-life” movement won’t accept such exemptions, however, for reasons I’ve previously discussed.
NOTE: Comment updated with more details after original posting.
* Sarcasm alert
Comment 7/7/2005
I should point out that I agree that “choice” for abortion is indeed a stretch, but nowhere near as big a stretch as “murder.”
Comment 7/7/2005
So called because it is an abortion, and involves partially inducing birth.
No one said it would, statistically speaking, but some of us draw a moral distinction between first term convenience abortions, on the one hand, which are safe, legal and anything but rare, and the much rarer practice of retroactively “aborting” an unwanted newborn infant by abandoning him/her in a dumpster or flushing him/her down the toilet. Medically unneccessary so-called “so-called partial-birth abortions” may not be quite that extreme, but they’re too close for most people’s comfort, and certainly close enough to justify distinguishing the practice from early-term abortions, even under Roe, Casey, or the laws of just about any country in the world other than the U.S.
The former is clear as mud (”health” could refer to just about anything) and the latter is flat-out false. There was no genuine “clarity” problem with the law at issue in Stenberg, only a clear meaning that five out of nine Supreme Court Justices clearly didn’t like. If this were really about clarity they would have construed the law narrowly rather than overturning it outright.
As applied to abortion generally I’d say it’s about a wash. As to partial-birth abortion (oops, I mean “so-called” partial birth abortion), it’s not even close, especially if the pro “choice” side also maintains that so-called “so-called” partial birth abortions are almost never elective anyway. You can’t have your “choice” and abort it too.
Comment 7/7/2005
No one denies that it’s an abortion, it’s the “partial-birth” part that causes the foul. It’s a term that’s specifically chosen for its emotional impact, irrespective of the fact that it’s not an accurate description of what it is. Think “Death Tax.” (A term which I’m sure you feel is the most accurate way to describe the Estate tax, too…)
Of course, why use the non-partisan, technically accurate term when you can pick a juicy, emotionally charged one that lets you eschew rational debate and demagogue the holy hell out of the subject? No, wait a minute, that can’t possibly be your intent, because that’s something those damned liberals do when succumbing to their fear of, say, guns.
This is only true if you completely disregard the alternatives (which, funny enough, you have). Alternatives which, I might add, generally still lead to a dead fetus.
As to the former, this is a problem that could be fixed with more specific definition (you could, for example, stipulate that mental health isn’t a valid exemption, and O’Connor probably would have bought it). As to the latter, I don’t think anyone disputes the fact that the bill as passed would have banned more procedures than those it was claiming to. In fact, the bill’s proponents were likely happy about this.
The bottom line, however, is that this bill (and others like it) was little more than a BS proxy by which the anti-abortion movement wanted to ban all abortion, even if one method at a time. The court recognized the chicanery and (five of them anyway) didn’t buy it.
This, I’m afraid, happens all the time, and the “conservative” justices are just as guilty.
Honestly, I wish someone would publish good statistics as to the motivation for such abortions, so we could lay the argument to rest. Of course, if you think the Dobsons of the world would stop opposing the practice even if it were shown that the number of elective abortions done that way was zero, I’ve got some WorldCom stock to sell you.
Comment 7/7/2005
That’s because both terms are accurate. The former is an abortion procedure that involves inducing, and partially carrying out, a birth. The latter is a tax that gets levied on one’s estate when he dies - but does not get levied on one’s estate if he doesn’t. Yes, they are ugly terms chosen in part for their emotional impact. No, that doesn’t mean they’re inaccurate. Contrast both with the phrase “assault weapon,” which is also chosen for emotional impact, but which tells you nothing about the functionality of the weapons being described (aside from the fact that a given weapon may bear a superficial, outward resemblance to an “assault rifle,” as that term has been traditionally used in military jargon).
I said “medically unnecessary” partial birth abortions, by which I meant the ones where the fetus was viable and could be saved without killing or severely injuring the mother. I don’t care what doctors do with fetuses that were going to die anyway.
Examples? I assume that by “conservative” you mean the same three I would describe as conservative, and not Justices Kennedy and O’Connor. Those two are, IMO, the least principled of the nine.
I frankly don’t care what the Dobsons of the world think, any more than I care what pro-abortion extremist liars like Eleanor Smeal think. All I care about right now is what the Supreme Court thinks the Constitution says on the topic. In the unlikely event the Supreme Court ever figures out the answer (nothing), I’ll start caring what my state Legislature thinks.
Raising the spectre of Dobson is a prime example of why slippery slope arguments are usually wrong. Most Americans oppose late term abortions in general, and partial-birth ones in particular (frankly, I fail to see that distinction myself), and most of the subset who support PBA restrictions also support further restrictions, but at some point, a majority of a majority of a submajority stops being a majority and therefore stops getting what it wants in a democracy. One could just as easily argue that a proposed 1% tax increase will convert the U.S. to a full-blown socialist state, merely by pointing out first that most proponents of the 1% increase also favor a 2% increase, and then noting that most of those who favor 2% are also OK with 3%, and that most who favor 3% also favor 4%, and so on, all the way up to 100%.
Comment 7/7/2005
That’s highly debatable. I could just as reasonably argue that a Captial Gains tax should be called a “life tax,” because it is a tax, and people pay it while they’re alive. Of course, not everyone who lives is subject to the tax — just those who are subject to it for other reasons, but never mind that…
And for the record, you can no more be “partailly born” than you can be “partially pregnant.”
Which is why I would expect you to frown on such tactics rather than engaging in a game of “good enough for me, but not for thee,” as Uncle would say.
For the record, I don’t much like it when either side appeals primarily to emotion instead of reason. That’s not to say it’s never okay to appeal to emotion, but reason has to prevail. If I’m guilty of trying to get emotion to trump reason, by all means call me on it.
And on these, we have little to quarrel about. Except, of course, that the laws as passed would have banned a lot more than just these.
Gee, let’s see, in recent memory there’s Scalia’s “Establishment Clause permits this disregard of polytheists and believers in unconcerned deities” fabrciation that he used to justify ruling in accordance with his personal preferences. Somewhat less recently, there’s the “state sovereign immunity” fabrication. And, of course, there’s Bush v. Gore in which the federal Supreme Court stepped in to override a State Supreme Court’s ruling concerning the application of a State statute that concerned a matter that is explicitly listed in the Constitution as a state matter (Art II, Sec. 1, Clause 2). Those are three that immediately spring to mind where the “conservatives” took liberties with the Constitution to rule in favor of personal preferences.
And this is an example of why oversimplistic arguments are also usually wrong. Most Americans say they believe in lots of things when asked simplistic questions, but when more specific questions are asked, their opinions change dramatically. Ask an American if they support lower taxes, they’ll virtually always say yes. Tell them that in order to get those lower taxes, you’ll have to cut funding for (say) their schools, and the answer often changes. Such is the case, I suspect, with American opposition to partial-birth abortion.
The ethical distinction or the technical distinction? Technically speaking, not every late-term abortion is a D&X (or, if you prefer, “partial birth”) abortion, and in fact the majority of them aren’t. D&E is far more common than D&X, although it isn’t terribly common, either. On the ethical side, however, I agree that the distinction shouldn’t matter much. If the result is a dead fetus, what difference does it make if you kill it and pull it out versus pulling it partway out first?
Comment 7/7/2005
Or that dead people realize taxable capital gains at death, or that corporations pay the capital gains tax without being alive in the first place, etc. Death is the triggering event for the estate/death tax. Neither life nor death is the trigger on the tax on capital gains. I suppose you could go the opposite route, a la Forest Lawn, and call the estate tax the “Celebrating a Life” tax.
Sure you can. You can start the birth process and kill the fetus while it is underway, which is pretty much what D&X is.
Apples and oranges. I don’t object to crass terminology, only to dishonest or misleading terminology. “Partial birth abortion” is a brutally frank description, in layman’s terms, of how D&X is performed. It’s emotional because it’s accurate. Meaningless or misleading terms like “assault weapon” or “Saturday night special,” by contrast, are not descriptive of anything. “Assault” weapons are so called merely because they look like assault rifles, and not all of them even meet that minimal criterion. Saturday night specials don’t work any better on Saturdays or at night, and frankly aren’t even all that special. But “partial birth abortions” are exactly what the name suggests.
While a true-blue strict constructionist would have gone much further still, ruling instead that the Establishment Clause did not even apply because the state in question was not “Congress,” the activity in question was not a “law,” and whatever message the activity in question may have sent regarding religious beliefs generally it didn’t say diddley about any “establishment” thereof. If any Justice were to rule that way today, he’d be widely condemned as an activist, but only because he is departing from stare decisis (Latin for “because I said so”), not because he wasn’t being true to the Establishment Clause as written, or as it was generally understood by those who saw fit to enact it.
Sovereign immunity goes back a lot further than the U.S. Constitution. If the framers of our system had actually intended to abolish it, don’t you think they might have made it a bit more explicit? Or are you referring to the line of Eleventh Amendment cases, and criticizing them only for mentioning the Eleventh Amendment when actually ruling under a legal doctrine that precedes it? If the latter, I don’t disagree, although I also have a hard time getting too upset over what is, by and large, a debate over semantics.
Actually, it’s not. Article II, Sec. 1, Clause 2 expressly requires each state to choose its electors “in such Manner as the Legislature thereof may direct,” it’s not left up to “the state” in general. Unlike almost every other matter left to “the states” under the federal Constitution (Article I, Section 4 being the only other exception to come to mind), this particular matter was left to the legislature and the legislature alone. If any court can review it, there’s no more reason to defer to the Florida Supreme Court’s judgment than that of any other. In this case, it was clear that the statute said one thing and the court said another, and the U.S. Supreme Court should have reversed them on that basis alone. If the three conservatives had been a majority, they would have, but they couldn’t because they needed a majority and the moderates were too squeamish to admit out loud that a court had effectively changed a law rather than merely “discovering” a meaning that was hidden in it all along. So they went for the lowest common denominator, instead, issuing a ruling that was so friggin’ right-wing activist that even two of the liberal Justices agreed to it as well (though they disagreed with the remedy). Not one of the nine argued that the court ruling should not be reviewed under the 14th Amendment because it involved a matter of state law, nor would such an argument even have been coherent, given that the 14th Amendment applies by its terms to all actions by the states.
The ethical one. I think we ought to pick a point, somewhere between the second and third trimester, and say “that’s it,” and say any healthy fetus killed after that point is either murder or, depending on the circumstances, lawful self-defense. Unless there’s some other reason I’m aware of (e.g., D&X causes more pain to the fetus than D&E does), I can’t see any reason to have it legal at any stage to kill a given fetus by means of Method A but not Method B.
Comment 7/7/2005
Dude, your spam filter really sucks.
Comment 7/7/2005
Sandra Day O’Connor as the Swing Vote
Matthew Yglesias (h/t: Jon Henke) rightly takes some of his fellow libs to task for pontificating over how John Roberts’s nomination will supposedly end abortion rights (or at least the “constitutional” protections they currently enj…
Trackback 7/31/2005
[…] Still think I was overreacting? […]
Pingback 4/18/2007