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Ginsburg: Court should have avoided broad-based decision in Roe v. Wade

May 13, 2013, 09:20 am CDT

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“[Roe v. Wade] surprised me. Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.”

Ginsburg

By Marc on 2013 05 13, 10:47 am CDT

The full quote, without Marc’s selective editing:

Q: Are you talking about the distances women have to travel because in parts of the country, abortion is essentially unavailable, because there are so few doctors and clinics that do the procedure? And also, the lack of Medicaid for abortions for poor women?

JUSTICE GINSBURG: Yes, the ruling about that surprised me. [Harris v. McRae—in 1980 the court upheld the Hyde Amendment, which forbids the use of Medicaid for abortions.] Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

http://mediamatters.org/research/2009/07/13/conservative-media-distort-ginsburg-interview-t/151977

By Anonymous on 2013 05 13, 11:20 am CDT

“[Roe v. Wade] surprised me. Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.”

Ginsburg

By Marc on 2013 05 13, 11:23 am CDT

I wonder who “those people” are that Ginsburg didn’t “want to have too many of”?

By Marc on 2013 05 13, 11:39 am CDT

Again, a little basic research will show you that the quote is distorted.  She is attributing the sentiment to others. 

Roe has enough vulnerabilities.  You don’t need to distort fact and attack Ginsburg to point out its weaknesses.  Act like a lawyer for once.

By Anonymous on 2013 05 13, 11:43 am CDT

@3 Although eugenics fell out of favor after World War II (appropriately so), this psuedo-science never disappeared, at least among the elites.

By Yankee on 2013 05 13, 11:50 am CDT

Comment removed by moderator.

By NoleLaw on 2013 05 13, 12:02 pm CDT

“Roe became a symbol for the right to life movement. They have an annual parade now every year on the day in January when it was decided,” Ginsburg said.

Maybe because some of us value human life.  A women can do whatever she wants with her body but the murder of a living being has nothing to do with the right to privacy.

I guess the only benefit to abortion is that it decreases the surplus population of future liberals.

By tim17 on 2013 05 13, 1:27 pm CDT

I see the usual suspects are on here twisting the Justice’s words to create false outrage.  Obviously, this is not surprising.

By EsqinAustin on 2013 05 13, 1:40 pm CDT

@6 - Eugenics remained alive and well in the U.S. well past WWII, and it is not a pseudo-science, insofar as there is pretty certain evidence that many human characteristics, i.e. size/strength, intelligence, and even temperament, have very strong ties to genetics. Eugenics, of course, is highly objectionable on ethical grounds.

@1,3, and 4 - Speculation, but “those people” probably refers to people who do not want children themselves, as evidenced by their obtaining an abortion. If you look at the complete quote…ah, forget it.

By NoleLaw on 2013 05 13, 1:40 pm CDT

So, I guess you value human life as long as the human in question agrees with your politics.  At least you’re honest, which is more than I can say for Marc with his selective editing.

It’s unfair to paint everyone who is pro-choice as not valuing human life.  Broad generalizations and crude swipes don’t get us anywhere on this issue.  If you ignore the genuine issues about “when does life begin” and “when does a ball of cells become a ‘human life’” just to make snide comments, you aren’t advancing your cause.  You just mark yourself as a pundit that people will realize they should ignore because you aren’t going to make a genuine effort to engage in critical examination of the topic.  You just want your way, and generalizations and snappy language might be fun, but it won’t help you achieve any goal.

By Anonymous on 2013 05 13, 1:46 pm CDT

Ginsburg clearly shared the same beliefs as Margaret Sanger, founder of Planned Parenthood:  “More children from the fit, less from the unfit—that is the chief aim of birth control.”

By Marc on 2013 05 13, 3:23 pm CDT

Egad! Oh wait, there is nothing objectionable about that quote. People are the best judges of whether they are fit to have a(nother) child after all.

By NoleLaw on 2013 05 13, 3:28 pm CDT

Marc:  “More children from the fit, less from the unfit—that is the chief aim of birth control.”

Wow, Marc, I am appalled that you would support such a notion! 

(See how selective quoting works)

By EsqinAustin on 2013 05 13, 3:28 pm CDT

@10:  So, using your interpretation of what Ginsburg said we get:

“Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations of [people who do not want children themselves, as evidenced by their obtaining an abortion].

Gee, that doesn’t make any sense. 

What Ginsburg said is quite clear - she thought that Roe v. Wade was to keep the population down, especially the growth of the population of the type of people we don’t want too many of.

By Marc on 2013 05 13, 3:32 pm CDT

@13: Yes, I suppose one could twist it into maening “fitness to be a parent.”

I suppose you also agree with Margaret when she said: “We do not want word to go out that we want to exterminate the Negro population,” she said, “if it ever occurs to any of their more rebellious members.”

Were none of them “fit to be parents”?

By Marc on 2013 05 13, 3:34 pm CDT

Marc, the only person here twisting meanings is you, buddy.  I mean, do you do any research at all?  There is a lot of context and commentary online showing what the actual topic was and what was actually meant there.  You didn’t even correctly identify the case she was talking about at the front of the quote.

By Anonymous on 2013 05 13, 3:36 pm CDT

@16 - Honestly, I have not reseaerched much about Sanger. She apparently was somewhat racist who believed in a mild policy of eugenics. What relevance does that have to this article, Roe v. Wade,  or Planned Parenthood today?

By NoleLaw on 2013 05 13, 3:44 pm CDT

I shouldn’t have qualified her preferred policy of eugenics as “mild” on further wikiresearch, but still, what does Sanger have to do with this story? Just more trolling ammo?

By NoleLaw on 2013 05 13, 3:47 pm CDT

Margaret Sanger’s book “Woman and the New Race,” is heavily predicated on racist sterotypes and promotes a eugenic world view.

By Yankee on 2013 05 13, 4:16 pm CDT

What does Margaret Sanger have to do with Planned Parenthood is like asking what does Obama have to do with the White House.  She started Planned Parenthood.  They for oobvious reasons don’t want this to get out.  A clinic here in Jacksonville just purchased a building to do there abortions under the anonymous name M. Sanger, so the Right to Life folks would not know of it’s impending new opening.  They found out and are there praying already for it’s demise.  What is so despicable is that they are a for profit industry supported by yours and my tax dollars; and just like a business, if they do not do enough killings and make enough money (profit) on the balance sheet, they close and open in another area of town, ususally poor and ethnic areas, where the business is much better.  What a tradgedy, started by the ole’ eugenics women herself Margaret Sanger.

By Fr. Mike on 2013 05 13, 4:23 pm CDT

Marc:  “[I] clearly share[] the same beliefs as Margaret Sanger, founder of Planned Parenthood:  ‘More children from the fit, less from the unfit…’”

Marc:  “Frankly I ... [am] ... concern[ed] about population growth and particularly growth in populations that we don’t want to have too many of.”

By Mark on 2013 05 13, 5:03 pm CDT

@16

But where did Margaret Sanger wrote the bar, Marc?

By Doodle Dandy on 2013 05 13, 8:40 pm CDT

I’m so glad that we have 9 elitist lawyers from harvard and yale making these decisions for the rest of us idiots.  God forbid the states make their own decisions.

By Jim from Ohio on 2013 05 13, 10:39 pm CDT

@ 20: What seems to have escaped Marc is that eugenics was a popular and accepted theory up until about WWII. Buck v. Bell has never been overruled. And at least 26 states had laws based on the Supreme Court’s ruling in the case. While they are no longer enforced, many still exist in the codes.

By BMF on 2013 05 13, 11:08 pm CDT

New York University’s Margaret Sanger Papers Project, clarifies that Sanger, in writing that letter, “recognized that elements within the black community might mistakenly associate the Negro Project with racist sterilization campaigns in the Jim Crow South, unless clergy and other community leaders spread the word that the Project had a humanitarian aim

By MS on 2013 05 14, 1:01 am CDT

Back to the article, Justice Ginsburg makes a good point that addressing abortion as a privacy right, as opposed to a woman’s right to control her own body, seems right on point. Not as many would have trouble viewing the Constitution to protect an individual’s right to personal autonomy as a fundamental right, as opposed to having the right to an abortion based on “privacy”.

(Re: Sanger - Lincoln made many statements indicating that he considered the black race clearly inferior to the white one. Do we dismiss his contributions to keeping the country together and abolishing slavery because he would be considered a racist by modern standards? Not comparing Sanger to Lincoln obviously, just making the point that each was the product of their times.)

By NoleLaw on 2013 05 14, 8:27 am CDT

@1 Marc

This is a site for attorneys. Obviously you are not one. You should move on to political forums.

By William Able on 2013 05 17, 4:53 am CDT

Roe v. Wade was just the start of broad based abortion rulings.  For those of us who are pro-life and who believe that Roe v. Wade and Casey v. Planned Parenthood should be overruled, what Justice Ginsburg says still does not face up to the errors of judicial activism in making abortion a constitutional right.  Neither privacy nor personal autonomy nor anything else justify ignoring that we are dealing with life in yet to be born babies.  How many cases of Gosnell-like infanticide do you need to wake up to the realities of abortion?

By Phil Byler on 2013 05 17, 6:15 am CDT

Yup, Frankfurter was right!

By gdp on 2013 05 17, 6:30 am CDT

@29 - The “realities” of abortion are that one monster doesn’t justify taking the right away from everyone.  I don’t think you’d like that logic much if you think about it.  If you get to apply it here, then we get to apply it to Newtown and deprive you all of gun rights just because one person is a monster.

By Anonymous on 2013 05 17, 8:10 am CDT

@31:  Indeed.  Following Phil’s “logic”, the fact that medical malpractice exists is grounds for banning the practice of medicine.

By EsqinAustin on 2013 05 17, 8:20 am CDT

The debate regarding when life begins takes us nowhere.  Why not just accept the obvious, namely that life begins at the moment of conception?  The real question on the abortion issue is at what point is the fetus’s life so advanced that it trumps the right of the mother to end it.  Both pro lifers and pro choicers need to accept the fact that the answer to this question should be dictated by societal norms.  Society generally seems comfortable with a fetus’s life being ended at an early stage of development. Yes, it is human life but it is so undeveloped that society doesn’t demand its protection.  Determination of the point at which society demands such protection has nothing to do with religion nor the personal choice of the mother.

By Saffer on 2013 05 17, 8:20 am CDT

I actually really like the directness of that post.  I would only add that it is not “obvious” that life begins at conception—we don’t even have a non-arbitrary definition of “life.” 

I would only modify your reasoning to say “Assuming, arguendo, that life begins at conception…”

By Anonymous on 2013 05 17, 8:23 am CDT

@33 - “Why not accept the obvious…”

Actually, life on earth began about 3.5 billion years ago and has not stopped since. Conception is not life emerging from nonlife, but rather two live cells merging into one, as I’m sure you remember from 7th grade health class.

By NoleLaw on 2013 05 17, 8:23 am CDT

Good for Justice Ginsburg to criticize Roe v. Wade, even if mildly. I’m not sure i would describe the March For Life, which takes place every year on or close to January 22, the day Roe was decided, as an annual “parade.” Year after year, usually in snow and freezing cold, hundreds of thousands of peaceful protestors come to DC for Justice Ginsburg’s “parade.” If one could separate out one’s opinion on the issue, itself, one would have to admit it is a pretty remarkable ongoing political gesture and totally unprecedented in terms of numbers and duration. It doesn’t seem to have done anything to change the law, but it is definitely admirable. I would imagine the “parade” is—- by many multiples—- the largest women’s political demonstration every year.

By muggers on 2013 05 17, 8:32 am CDT

When most people assert “life begins”, what they really mean is “personhood.”  I really wish everyone used more precise nomenclature, since outside of the realm of religion, there is no basis for asserting one implicitly involves the other.

By EsqinAustin on 2013 05 17, 8:32 am CDT

Anonymous @31: You miss the point because you are assuming the legitimacy of abortion as a practice.  While Gosnell was not unique and not just one monster, the larger issue is that “partial birth abortion” and late term abortion call into question what abortion is about and where it leads.

EsqinAustin $32:  Nonsense, I was not putting forth a “logic,” but citing a bad case that calls into question what our assumptions are about the subject of abortion.  Your quip incorrectly assumes that abortion is legitimate medical practice.  Historically, that is just not so.

By Phil Byler on 2013 05 17, 8:40 am CDT

The article is damage control by an activist judge to protect her political reputation at a sensitive time around the Kermit Gosnell case. Bader-Ginsburg clearly felt it was ok to undermine the Constitution with an undemocratically decided population control agenda that was only a consensus of an academic “elite”, which an agenda that did not exist in the Constitution neither at the time of Roe v. Wade or now, judging both from the quotations in Comments #1 and #2(same quote in context).
Having an activist judge in the Supreme Court is like having a wolf guarding the sheep, regardless of the political flavor of the activism. Any other caucasian judge would have been compared to Nazism for the quotation that she made (#1 and #2), in or out of context.
Any change in the law should have been made through political means.

By Patrick Mulrooney on 2013 05 17, 8:41 am CDT

@38:  “Nonsense, I was not putting forth a “logic,”

Clearly.

“Your quip incorrectly assumes that abortion is legitimate medical practice.  Historically, that is just not so.”

Historically, slavery, torture, women being sold in marriage, etc., are all fine and dandy.  If you want to participate in modern society, find better reasoning than “but history says…”.  Otherwise, you will be rightfully ignored.

By EsqinAustin on 2013 05 17, 8:42 am CDT

Saffer @33: Once you admit that life begins at conception, then you cannot then blithely proceed, as you do, to an assumed right of a mother to end it.  Also, societal norms exist because of religion and beliefs as to the range of permissible personal choices.

By Phil Byler on 2013 05 17, 8:44 am CDT

EsqinAustin@40: How about dealing with the rest of my sentence after “Nonsense, I was not putting forth a ‘logic’. . . .”  I wrote: “but citing a bad case that calls into question what our assumptions are about the subject of abortion.”  Posturing is not good enough here.

Also, what does slavery, torture and forced marriages have to do with what historical medical practices have been with respect to abortion?  You seem to think that abortion is some advancement in human society.  I am here saying that it is a turn toward barbarism.  Again, how about dealing with that?  Again.posturing is not good enough here.

By Phil Byler on 2013 05 17, 8:51 am CDT

Does anyone else have a problem with the statement: “Ginsburg said she tried to revive the case, and even asked Struck if there were any issues of inequality that might allow the case to move forward.” Obviously this had to have happened after the case was rendered moot - otherwise it would have been moving forward of its own accord. Is it ethical for a justice to contact a litigant (or a litigant’s lawyer) to try to drum up issues to bring before the court? How politically motivated was that? Isn’t such conduct an outrightviolation of the code of judicial ehtics?

By Confused on ethics on 2013 05 17, 8:51 am CDT

@42:  “Again.posturing is not good enough here.”  If you think you have been doing anything other than that, you are sadly confused.

““but citing a bad case that calls into question what our assumptions are about the subject of abortion.”

No, you were referencing the “realities of abortion”, to which I was responding.  Whatever “logic” you pretend to have in concluding anything about the “realities of abortion” is deeply flawed, it would appear.

“You seem to think that abortion is some advancement in human society.”

Yes, I do.  And? 

” I am here saying that it is a turn toward barbarism.”

And I would argue your position is barbarism.

By EsqinAustin on 2013 05 17, 8:54 am CDT

Any position that requires a woman to be forced to remain pregnancy and give up her bodily autonomy against her will is barbarism. 

Those who disagree, well, I don’t think there is any rational purpose in continuing that argument since it will lead nowhere.

By EsqinAustin on 2013 05 17, 8:55 am CDT

The eugenics issue provides an excellent example of the all but impossible legitimate debate on very complicated matters which find themselves immediately drawn into the mini-political disagreements, truth be damned.  Hyperbole, slippery-slope and religious arguments rain down and reduce informed debate to name-calling and snarkiness.
While we can pooh-pooh from our vantage point in 2013 the Sangers, birth control notions of the “less fit,” encouragement of a population of the “more fit,” the political incorrectness of it all doesn’t change reality.  Is the eventual “quality” of a human being a factor, ever?  Should the factor of genetically compromise ever be a consideration in producing issue or is everyone entitled to produce at will without regard to any consequences? 
I submit these issues can never be meaningfully addressed in our current political climate.

By porkut on 2013 05 17, 8:57 am CDT

@43:  The “Struck” case was when Ginsburg was an attorney, *not* a Justice.

By EsqinAustin on 2013 05 17, 8:58 am CDT

@Phil - I don’t think I missed your point, but I think we fundamentally disagree on the “legitimacy” of the practice.  There will always be monsters out there.  Whether they are abortion doctors or people who murder them in the name of God.  The challenge, I think, is not to strip rights away from innocent citizens because of the acts of monsters.  We should react with regulation and oversight—background checks on gun buyers and inspections of clinics.

@46 - I agree—you will never be able to have a meaningful discussion about those issues.  I don’t know how much they really touch abortion, though.  Your post reminds me of an old ethics problem we did in a seminar once, where you have three candidates who need a transplant and only one organ.  It’s very, very uncomfortable to try to judge another human being’s “worth.”  And yet the practical reality—at least in that problem—was that it was part of the calculus.  Or I should say, it *could* have been.  I think some groups decided just to pick a recipient randomly.

By Anonymous on 2013 05 17, 9:13 am CDT

Nevermind.

By Confused on ethics on 2013 05 17, 9:24 am CDT

Sanger didn’t favor abortion, she favored birth control and education.  Maybe part of her motivation was eugenics, but a large part was to stop the ravages she saw put upon women, including her own mother, by numerous pregnancies with no means to avoid them.  Many pro-choice individual, including me, would like to see abortion eliminated by sex education and access to birth control, including Plan B.  But I also think there is a need for legal regulated abortion to prevent the back alley monstrosities and coat hanger mutilation that would be inevitable.

By MS on 2013 05 17, 9:29 am CDT

“More children from the fit, less from the unfit—that is the chief aim of birth control.”

I suppose I’ll catch all kinds of flack for this, but I honestly don’t understand how that sentiment could be offensive to any rational person.  As long as such decisions are being voluntarily made by adult individuals—forced gov’t sterilization/abortion would obviously be unconstitutional not to mention morally repugnant—it is surely a net benefit to the greater good of humankind and the long-term survival of the species.  “Survival of the fittest” is not an ideology or political slogan, it is a fact of life, like the sun rising in the east.  Nevertheless, I guess the Sanger-haters can take solace in the fact that birth control proved to work out just the opposite: it is the “fittest”—smartest, wealthiest, most successful—whose birth rates have droppped significantly over the past 40 years, while the poorest, dumbest, least successful people just keep having babies.  (Thanks, LBJ’s Great Society!)

In any event, in hindsight Ginsberg is absolutely right, it would have been far better to rule on narrower grounds and let such issues continue to percolate through politics, evolving societal mores, geographic and cultural differences, medical advances, etc., than to invent out of whole cloth a constitutional “privacy right” to abortion.

By Just Some Bloke on 2013 05 17, 9:46 am CDT

EsqinAustin@44: You are not really dealing with what I have written.  You are standing on a belief in abortion as a right that reflects an advancement in society, which may seem to some, including yourself, as progressive; and you think that back hand disparagement of my pro-life position is sufficient.  It is not.  I am here saying no, abortion “rights” do not reflect advancement in society and indeed abortion should not be considered a right. Abortion is the killing of a yet to be born baby; it is barbaric.  Having as constitutional law abortion on demand is insanity and relfecting a deterioration in society.

Anonymous @48: We do respectfully disagree on our premises.  What you call stripping away rights, I call correcting the law from the mistake of giving a license to kill a yet to be born baby.

By Phil Byler on 2013 05 17, 10:07 am CDT

I can see how you’d reach that conclusion.  But the mere fact that we can both have the same information and reach different outcomes with it means, to me, that there is no objectively right position.  And that being the case, I feel that the government shouldn’t make that decision for each individual. 

I think of the law as not having given a license to kill anything—but as removing the government’s ability to make a highly personal decision on an issue where no side can every be objectively proven right.

By Anonymous on 2013 05 17, 10:11 am CDT

@52:  “You are not really dealing with what I have written.”

Nor have you dealt with what I have written. 

“Abortion is the killing of a yet to be born baby; it is barbaric.”  ” Having as constitutional law abortion on demand is insanity and relfecting a deterioration in society.”

Yes, I understand that is your opinion, and I suspect I know the basis for your opinion.  However, at this point you are simply putting forth a logical fallacy and circular reasoning, essentially arguing that something is wrong because it is wrong. 

Regardless, I utterly disagree with your opinion.  Given that to continue would be to go in circles, further debate could serve no further purpose.

By EsqinAustin on 2013 05 17, 10:13 am CDT

I am not going to get involved in this discussion about the wisdom or morality of Roe v. Wade. I think that Justice Ginsburg’s recent remarks on that decision foreshadow where the Court’s decisions on the same-sex marriage cases this term will end up. Namely, both will be decided on as narrow grounds as possible, without sweeping language, but if there is a broad opinion on DOMA’s unconstitutionality, Justice Ginsburg may well write a concurring opinion that gives a narrower rationale. It is pretty much the consensus now that the Prop 8 case will turn on the issue of standing, which will limit its scope tremendously.

By Martin Olesh on 2013 05 17, 10:21 am CDT

Here’s a perspective to consider.  I would argue thus.  Let us say that life begins at conception.  A woman at no time has the right to kill a fetus.  However, a woman at all times has the right to remove an unwelcome fetus from her body.  Tragically, prior to viability, such removal will result in the death of the fetus.  That death is the result of the fact that the fetus can’t live on its own.  The fetus, just like all of us who have already been born, isn’t entittled to make use of someone else’s body to stay alive without that other person’s consent.  If a fetus can possibly live on its own, all care must be taken to preserve its life when it is removed from the woman’s body.  Neither the woman, nor the doctor, nor anyone else, has the right to kill a baby who could possibly live outside the womb.  This argument meets Justice Ginsberg’s criteria of focusing on the rights of women (and the limits of those rights).  It makes clear why someone like Gosnell is a murderer - unlike most abortion providers.  It also establishes that fetuses don’t have MORE rights before birth than any of us have after we are born.

By jlwright1 on 2013 05 17, 10:26 am CDT

EsqinAustin @54: I am arguing that abortion is wrong because it kills a yet to be born baby and you know it is wrong when you see it with your own eyes.  There was a woman journalist who covered the Gosnell trial who said that before the trial she was pro abortion rights, but that as a result of witnessing the Gosnell trial, she had become pro life.  I suppose that a moral precept that goes back to the Ten Commandments is merely circular reasoning to you.  But it is not.

Anonymous @ 53: First of all, you cannot say that the Government should not do something if there is disagreement on the subject; you would effectively stop Government from doing anything.  Secondly, you are assuming that abortion is a “personal decision.”  It is not; there is another life involved, and the Government has an obligation to preotect innocent lives.

By Phil Byler on 2013 05 17, 10:33 am CDT

@57 - You ever watch a woman who does not want to be pregnant be forced to carry the fetus to term and give birth? You’d know that is wrong if you saw it with your own eyes.

No pro choice person has ever said that an abortion is a good thing in itself. However, many who favor legal abortions are with @56 - to compel a woman to carry a pregnancy to term against her will is unjustifiable.

By NoleLaw on 2013 05 17, 10:38 am CDT

@56:

Just as a thought experiment, would the right to abortion then be eliminated when technology could sustain the baby’s life outside the womb from the beginning of its “life” (or “development” if “life” is too contentious a word) inside the womb?

I never framed the issue in the way you present it: i.e., that those of us on the outside don’t have the right to take over other people’s bodies. That’s what aliens do on Doctor Who pretty much every episode.  Since those on the outside the womb don’t have that right, then those inside shouldn’t either. Did I get that right?

But isn’t there a case to be made that the weakest (poorest, most helpless…) deserve more legal protections, precisely because of their weakness and vulnerability.

Personally, I think your reasoning is insane, because obviously pregnancy is different from the hostile bodily takeovers by non-foetuses, outside the womb, unless they’re aliens, of course, in which case we have bigger problems than sorting out the regulation of abortion. Roe is a hard case to defend, however, so I’m not trying to be obnoxious here.

By muggers on 2013 05 17, 10:41 am CDT

@57:  Nothing in your statement is more than a mix of “appeal to authority”, circular reasoning, and an appeal to religion (I do not care what the “Ten Commandments” have to say about anything).  Nothing in your statement contributes anything of substance to the underlying questions concerning the ethics of abortion, or of the philosophical questions of what constitutes a person with rights, versus a life.  I don’t question that “life” begins at conception (what a lazy statement), instead, I argue there is no “person” at conception.  There is no “person” before there is a brain capable of supporting human consciousness.

By EsqinAustin on 2013 05 17, 10:50 am CDT

@59
No, the tragedy of, not the right to, abortion would be eliminated if technology could sustain the baby’s life outside the womb from conception.  Women could choose to terminate their pregnancies, and the babies could live.  That would be wonderful (although probably very expensive - another fight for another day). 

I am guessing (could be wrong) from your statement that you find my reasoning insane, that you have never been pregnant.  Most women with whom I share stories of our pregnancies make some reference to the movie “Aliens” at some point.

I am all for protecting the weak, but not at the expense of the personhood of women.  You do realize that, after a baby is born, the law cannot require so much as the donation of a pint of blood from its parents, even if necessary to save its life.  Any thoughts as to why the weak are only to receive extraordinary protections in situations when it must come only at the expense of the mother’s rights, not in any other situation?

By jlwright1 on 2013 05 17, 10:55 am CDT

@ 59.  “the right to abortion is eliminated [at the point where] technology could sustain the baby’s life outside the womb”

what is so insane about that?  I think could perfectly sane people agree with that statement.

By Joe on 2013 05 17, 10:55 am CDT

Phil—No, I wouldn’t extend my logic that far.  I wouldn’t say the government can’t act anytime people disagree.  I would say that the government shouldn’t make decisions for people based on nothing but naked morality.

By Anonymous on 2013 05 17, 10:56 am CDT

@50. Birth control is ubiquitous, cheap and subsidized. Yet abortions occur by the millions. You can “prefer” or “favor” birth control and education all you want. Some “prefer” to take the risk because there is little down side because abortion is pretty readily available and socially acceptable as long as you don’t want too long. The “back alley” abortion narrative is a tiresome canard peddled out by feminists to inspire fear and defeatism anytime there is a hint of enforcement of regulations to stop the likes of Kermit Gosnell from doing what he did.

By CT Lawyer on 2013 05 17, 10:57 am CDT

@45: “Any position that requires a woman to be forced to remain pregnancy and give up her bodily autonomy against her will is barbarism.”

No one is arguing in favor of a woman’s control of her own body.

Pregnancy is not an affliction that materializes out of thin air.  A woman has (in the vast majority of cases) the option to use a contraceptive when she has sex.  She knows that not using a contraceptive may result in pregnancy.  Her “autonomy” is then limited to her own body, not the other body within her.

This is not difficult to understand.  If people want to be tretaed as adults, act like one.

One day, civilized people will look back at this time and wonder how anyone could be this barbaric to condone and even encourage abortion.

By Marc on 2013 05 17, 11:00 am CDT

The pro-life position alleging murder for any abortion comes from their current definition of life as beginning with conception.  Prior to birth control pills becoming available, the definition of life was at birth.  When do you, for example, celebrate your own birthday—on the anniversary of your birth or of your parents’ conception of you (although the latter might become more festive).

Even Billy Graham previously took this position—because it is Biblically based.  Do a little Bible research on the breath of life.  Gen 2:7 “And God ... breathed the breath of life into his nostrils and man became a living being.”  Folks, the one-celled human zygote does not have nostrils.

There are many more supporting Biblical references that distinquish the beginning of human life from conception—and treat death of a fetus much less severely than murder.  This comment thread has spent a lot of time on taking things out of context and distortions.  That’s what the Pro-lifers have done with this issue.  The Bible doesn’t fit onto their bumper sticker.

By Breath of Life on 2013 05 17, 11:04 am CDT

Anonymous @63: Law is always based on some kind of morality.  It is not me saying that.  It is Oliver Wendell Holmes in “The Path of the Law.”

By Phil Byler on 2013 05 17, 11:15 am CDT

This is true, and that is fine.

But law must be based on *more than* naked morality—it should have an objective, rational component to.  In fact, it HAS to.  See Lawrence, Romer.

By Anonymous on 2013 05 17, 11:20 am CDT

@61 and 62

The “insane” part of the reasoning is to base the argument on the premise that the rights and duties of an intra-uterine entity should be the same as those of an extra-uterine one. I wouldn’t want to argue that in court, even before Justice Brennan and co. As for not knowing about pregnancy, you’re right: i have never been pregnant. I’ve lived with someone who has been (and, incidentally, currently is) pregnant. I have some insight into the condition, albeit limited second-hand insight). I have also never been a senior citizen, a physically or mentally (debatable) disadvantaged person, a taxi driver, a native American, or undocumented immigrant, but that doesn’t stop me from thinking about their issues and representing their rights under the law.

By muggers on 2013 05 17, 11:51 am CDT

Thank you, jlwright1 @ 56, for articulating that rational argument so well.  It is exactly what I have always believed on this matter and in my opinion is one of the very few, if not only, principled positions that one can take.  In general, the law does *not* require one to come to the aid of another.  Thus, as long as a fetus is entirely dependent upon the woman, the woman’s rights trump the fetus’s rights, period.  Once you get to the point of viability outside the womb (which, as others have noted, is a constantly-shifting line), then the balance changes, at least between those two entities.  (Given, however, the astronomical cost of keeping premature babies alive, which costs are virtually always spread to society as a whole, whether via gov’t subsidy or insurance cos, it simply shifts the question to, does the premature baby have a right to demand that everyone *else* keep it alive.) 

Interestingly, while I’m no biblical scholar, I think this is roughly in line with traditional (not contemporary American, obviously) religious views, e.g. the “breath of life” or what also used to be known as “the quickening”—when the baby starts to move, when, it was believed, the spirit or soul or consciousness first came into what was previously just an empty physical vessel.  I know this is not exactly the same as viability outside the womb, but the point is, even deeply religious people have always realized that a one-inch, three-month old fetus was NOT the same as a person. 

Along these lines—and maybe someone like Phil Byer above can address this from a religious perspective—I’ve never understood the religious outrage over abortion, because if you truly believe in God, Heaven, an eternal spirit, the whole nine yards, what does it really matter?  If the spirit/soul hasn’t come into the baby yet, then it’s just cell matter, hardly “murder.”  If it has, then the entirely-innocent baby spirit will get to go to heaven right away anyway, right?

By Just Some Bloke on 2013 05 17, 12:05 pm CDT

Anonymous @68: What you say is a dodge to considering your own views as “objective and rational” and those views with which you disagree as not objective and not rational.  If you disparage pro-life views as not objective and not rational, then you are engaging in an elitist intellectual artifice.  And what makes you think that your own moral views are objective and rational? 

Also, what makes you think that the moral views expressed in the majority opinions in Lawrence and Romer were and are “objective and rational”? Lawrence and Romer are in fact instances of judicial imperialism expressing a contemporary elitist moral view at odds with traditional Judean-Christian morality informing the actions of the People or the People’s representatives.

By Phil Byler on 2013 05 17, 12:07 pm CDT

To muggers @ 59: you asked, “But isn’t there a case to be made that the weakest (poorest, most helpless…) deserve more legal protections, precisely because of their weakness and vulnerability?”

No, no there is not.  Our entire system is premised upon EQUAL rights under law.

By Just Some Bloke on 2013 05 17, 12:11 pm CDT

Sometimes you have to play the ball where it lays.  And pivotal cases are needed in our overly government dominated world to both prevent years of mass suffering and allow individuals to collectively progress society - with the strength of individual actions and choices that are the nation’s true charm and strength.  I personally believe a spirit chooses its parents, and may not join the body until days after birth.  If the acceleration of the last 100 years of knowledge and development including in the sciences has seemed beyond wonder, just watch the next 100.
  The law has historically been considered a delayed and studied refection of society.  Going forward, that approach may be more of a luxury for a functioning society - with greater need of broad, visionary thought which at the same time faces the challenge of not just having one view controlling the position and actions of another.

By Christopher Patterson on 2013 05 17, 12:16 pm CDT

@72: So we’re back to the hostile bodily takeover argument: you can’t do it [take over someone else’s body ] after birth so you shouldn’t be allowed to do it before birth.

By muggers on 2013 05 17, 12:17 pm CDT

Sorry, you misunderstand.  I do not mean that your opinion is irrational.  I am using the legal phrase “rational basis,” which is a term of art.  Meaning that it must be based on something other than naked moral condemnation. 

And you are right about Romer and Lawrence.  Thankfully so.  Because this is not a theocracy, unless and until the Constitution is revised.  Our Constitution prohibits the majority from doing certain things or acting for certain reasons.  Again, thankfully.  You can throw around words like “imperial” and “elitist” all you want, but it’s empty rhetoric.  You’d have to apply the same things to Loving v. Virginia and even Brown v. Board of Education.  You may not like the outcome—the majority of people may not like the outcome—but that does not make it Constitutionally wrong.  (And frankly, in this case, it probably means it wasn’t!)

I appreciate the discussion, but I believe we should leave it here, probably.  I don’t *like* abortions, no one does.  But I also don’t believe the government should be powerful enough to restrict a woman’s right to determine whether or not she will carry a pregnancy to term—at least past a certain point.  (Though where that point is is a subject of debate for another time.)

By Anonymous on 2013 05 17, 12:23 pm CDT

“Roe became a symbol for the right to life movement. They have an annual parade now every year on the day in January when it was decided,” Ginsburg said.

Dear Justice Ginsburg:  Attendence estimates for the most recent “annual parade” are approximately 650,000 marchers.  This is a serious, sustained, peaceful excercise of free speech rights that has been occuring for almost 4 decades.  By defining this activity as a parade, Justice Ginsburg,  you dismiss the deeply held concerns of your fellow citizens and seek to marginalize and trivialize the activities of the participants.  How disappointing.

By Patatty on 2013 05 17, 12:25 pm CDT

@70: “I’ve never understood the religious outrage over abortion, because if you truly believe in God, Heaven, an eternal spirit, the whole nine yards, what does it really matter?  If the spirit/soul hasn’t come into the baby yet, then it’s just cell matter, hardly “murder.”  If it has, then the entirely-innocent baby spirit will get to go to heaven right away anyway, right?”

Your right. Why should a woman complain about rape. It’s not like it implicates her soul, bruises heal and if she’s killed in the process, her soul gets to heaven right away.

You see how stupid this sounds in a different context?

By CT Lawyer on 2013 05 17, 12:29 pm CDT

@Patatty - But, uh… it *is* a parade.  Right?  What do you want her to call it?

I doubt Ginsberg would begrudge you in the slightest your First Amendment right to show that you disagree.

By Anonymous on 2013 05 17, 12:31 pm CDT

Like those parades they had in Washington back in the 60s and during Vietnam war.

The March for life is the largest protest by women—by far—in the history of the country.

By muggers on 2013 05 17, 12:37 pm CDT

@76: Oh please, you are acting like Ginsburg called it a “spectacle”. Seriously, that’s a pretty petty thing at which to feign offense.

By EsqinAustin on 2013 05 17, 12:38 pm CDT

Just as long as the compulsory-pregnancy people, the one who call themselves “pro-life”, lost, who cares how?

By Andrew on 2013 05 17, 12:40 pm CDT

@79:  “The March for life is the largest protest by women—by far—in the history of the country.”

Source?

By EsqinAustin on 2013 05 17, 12:41 pm CDT

I’d like to see a source too, but it wouldn’t shock me in the least.  Unfortunately, we are sometimes complicit in our own repression.  I support them expressing their opinions.

I just sort of wish they’d use all those resources to help new mothers and to assist with the costs of childbearing.  They’d prevent a lot more abortions that way than by ranting against something that isn’t going to change.

By Anonymous on 2013 05 17, 12:44 pm CDT

@83:  I ask for the source because the “March for Women’s Lives”, back in 2004, had roughly one million participants, and that was a pro-choice march.

By EsqinAustin on 2013 05 17, 12:45 pm CDT

@82 The source for this one is actually my brain. I should have dropped a footnote. Il’ll check wikipedia to see if I can something more authoritative. (:. and get back to you on that one. I’m sure someone half-way credible has the numbers. 

Anyway, I bet it’s the largest because 500k come every year and a lot of them are women. They’ve been doing it for 40 years. 

Seriously, I can’t think of anything that comes close to it, purely from a numerical perspective. Even the abolitionists couldn’t turn out those numbers. And on the worst day of the year, weather-wise.

By muggers on 2013 05 17, 12:48 pm CDT

Conception, life, personhood, autonomy—these are all deep issues of ethics, morality, philosophy.

I don’t see how those wearing black robes are any more qualified to decide those issues than are those wearing white collars.

Roe undermined the court’s legitimacy because it showed that the court was answering the question that it wasn’t qualified to answer, and answering it in a way that was contrary to the choice of the people as reflected in the people’s laws. Rather than being pro-constituion and anti-majoritarian, the court became anti-majorairtan and pro-choice.

By LexLoci on 2013 05 17, 12:49 pm CDT

@85 - I see that point of view, but I think you’re mistaken.  The Court’s job is NOT to be majoritarian.  If it were, the Court would just be Congress.  The purpose of a Constitution is decidedly anti-majoritarian, because it prohibits what a simple majority can do without enough of a groundswell to amend the Constitution itself.

Roe could have been reasoned better, but for many of us, it enhanced the Court’s legitimacy by showing that it would sacrifice individual rights to popular moral condemnation.

By Anonymous on 2013 05 17, 12:51 pm CDT

Anonymous @75:  No, not thankfully so as to Romer and Lawrence.  It is nonsense to invoke a concen about theocracy when what Romer and Lawrence represent is judicial activism on steroids to declare unconstitutional laws informed by traditional Judean-Christian morality that has informed the country’s laws for centuries.  Your views are based on certain moral views that refelct a different morality.  Would you like it if your views were derided as destructive licentiousness?  And that is my last word.

By Phil Byler on 2013 05 17, 12:52 pm CDT

You may deride my worldviews all you like, but that does not change the Constitution of our great country.

By Anonymous on 2013 05 17, 12:56 pm CDT

@84: FWIW from Wikipedia, which cannot lie, (footnotes omitted):

The March for Women’s Lives was a demonstration for reproductive rights and women’s rights, held April 25, 2004 on the National Mall in Washington, D.C.. March organizers estimated that 1.15 million people participated, declaring it “the largest protest in U.S. history”;[1] others estimated no more than 800,000 marchers,[2] with the Associated Press and the BBC putting the figure between 500,000 and 800,000, comparable to the Million Man March of 1995.[3] (The National Park Service no longer makes official estimates of attendance after the Million Man March controversy in 1994, so estimates are unofficial and may be speculative.)

By muggers on 2013 05 17, 12:58 pm CDT

@88:  Praise the gods that this country rejects the Theocracy that you seem to want controlling our laws.  The fact that you want “Judean-Christian” morality is based solely over your comfort with such religious views.

By EsqinAustin on 2013 05 17, 1:00 pm CDT

@anonymous—my point was that Justice Ginsburg inadvertantly inserted herself in a part of this issue that has no apparant upside for her.  She is an intelligent, solid jurist.  In what seems like an attempt to avoid using the term “March for Life”—the name the organizers and participants use for the event —she ended up providing a quote that has the potential to be used to make her look like an out-of-touch octogenarian. That would be unfortunate because it distracts us from what I think is the most interesting post and line of reasoning—Martin Olesh @55.  (I plead guilty on that count myself!)

Thanks for following up with me.  I appreciate the chance to elaborate.  What are your thoughts on @55?

By Patatty on 2013 05 17, 1:01 pm CDT

@87, Anonymous, I…I think you were directing your comment to me, LexLoci, number 85, not to the 86 you wrote.

To respond, I think the court’s function is to be the supermajoritarian branch. The Constitution reflects the will of the super-majority. Congress and state legislatures reflect the will of the majority. Naturally, the will of the more outweigh the will of the less.

My point is simply that on the issue of abortion the Court found a will of the super-majority—the constitutional will to protect the choice of abortion—that wasn’t there. When supermajoritarian voice can not be heard, the court should stood silent and leave the matter to the majority. But instead of that, the court finagled the Constitution and chose a side in cultural debate. Judges dressed in black robes, with all the authority that commands, decided a question for men in white collars, a question for women, a question for atheists, a question for fathers…a question that still remains open.

By LexLoci on 2013 05 17, 1:03 pm CDT

The Left is fond of invoking the Constitution when it suits their needs to be anti-majoritarian (by the way, a majority favor some abortion), but they keep conspicuously quiet when the discussion turns to eminent domain, campaign finance reform, gun rights, etc. Then the Constitution takes a back seat or they claim that the Constitution is “not absolute”, etc. etc. It is really quite hysterical to watch them squirm every which way to get the desired outcome.

Also, they absolutely love to use the phrase “don’t impose your morals on me” when they in turn do that very thing when it comes to creating news sets of rights, especially at the expense of traditional ones grounded in the Constitution. The bottom line is that if you say a fetus is worthy of Constitutional protections, you are making a value statement. We can disagree, but you have no right to invoke the federal government (ie USSC) to make your value statement the law of the land, unless it’s grounded in the Constitution. If you want to rely on the 9th Amendment, that’s fine, but show me where it’s rooted in the long-standing history and traditions of the American republic to permit abortion on demand. You can’t, so you turn to BS that Ginsburg was referring to. What she is saying is that there should have been a dialogue, but the Court’s intervention in Roe stymied it. In my estimation, it undermined the Court’s legitimacy.

By CT Lawyer on 2013 05 17, 1:08 pm CDT

If you are right, why hasn’t your supermajority amended the Constitution?

By Anonymous on 2013 05 17, 1:10 pm CDT

@95 Anonymous, if you are referring to me, then the answer to why my supermajority hasn’t amended the constitution is obvious.

One, it’s a hard thing to do.
Two, the supermajority to prohibit abortion doesn’t exist.

What hurts the court’s legitimacy is implying, actually holding, that a pro-choice supermajority did exist at the time of Roe, at the time of the Bill of Rights, or at any other time.

But rather than require the pro-choice people do the hard thing and convince a supermajority for a Constitutional amendment, the Court finessed the Constitution.

Note: I’m not claiming that abortion is constitutionally proscribed. Rather, I’m claiming constitutional agnosticism. Convince your state legislator to on the merits/demerits of the issue.

By LexLoci on 2013 05 17, 1:19 pm CDT

Muggers @ 74, I’d like to dialogue further, rationally, but I truly don’t understand what you are trying to say.  “So we’re back to the hostile bodily takeover argument: you can’t do it [take over someone else’s body ] after birth so you shouldn’t be allowed to do it before birth.”  I’m not sure what you mean by “back to,” but yes, as explained @ 56 and @ 70, that is at least *a*, and in my view perhaps the *only*, intellectually-principled way to look at the issue.  You are the one who introduced the odd “bodily takeover” phrase, for whatever reason.

Our point is that the law—which remember, is what we’re trying to discuss here—generally does not require one person to assist another, even if that lack of assistant will certainly result in the other’s death.  Try this example.  Person X lives on his property on the edge of a desert and has an ample food & water supply.  Person Y staggers to the edge of X’s property, says he’s just crossed the desert and desperately needs food & water, then collapses.  While “morally,” perhaps X “should” give Y some water & food, and while most people voluntarily would (unless, say, it would diminish their supplies to the point of endangering themselves), there would be no legal obligation for X to help Y.  The gov’t will not come in and prosecute X for declining to sustain Y—just like the majority of Americans do not believe that the gov’t should come in and prosecute a pregnant woman for deciding not to sustain an unwanted fetus.  In other words, as I tried to answer your question @ 72, no, the fact that Y is vulnerable and weak does NOT give him any additional legal rights nor impose on X any additional legal obligations.  Get it?

CT Lawyer @ 77: with all due respect, no, I don’t see that.  What I see is someone trying to change the subject to a completely distinguishable scenario because he/she doesn’t have a good answer.  Look, I was just honestly asking for an explanation of motivation by the religious objectors to abortion.  Not everyone who supports a government ban on women being allowed to choose an abortion is religious, of course, nor does everyone who is religious support banning abortion, but the most radical and vocal proponents of gov’t banning abortion seem to be the so-called “religious right.”  It’s just always struck me as odd that a supposedly spiritual group would be so particularly incensed about abortion, for the reasons I (tried to) set forth @ 70.  Please re-read my second paragraph there, and if you actually have any insight to offer, I’d appreciate hearing it.

P.S.  It’s not only, or even primarily, the religious who object to rape.  I think (hope!!) pretty much everyone (at least in the U.S.; probably different rules in, say, Afghanistan or Saudi Arabia) agrees that the gov’t should ban rape.  What I was commenting on was the apparent disconnect between the spiritual and political positions of the religious right on banning abortion, and asking whether that position wasn’t in conflict with past religious stances.  And also, just by the way, rape seems like a particularly poor choice of attempted analogy on your part, given that many self-proclaimed Christians who support banning abortion would extend that ban even to situations in which the woman became pregnant from being raped—basically, that she should be punished for the rapist’s crime.

By Just Some Bloke on 2013 05 17, 1:30 pm CDT

@97: I get it. I just don’t believe y’all want to argue it!

To assign the rights/duties of the “born” to the “unborn” is… what’s the word I’m looking for… flawed. Under the law, minors and the incompetent are given proxies—guardians ad litem, next friend, conservators, powers of attorney—to protect their interests. So it is not—at least in theory—unfair for the law to treat them the same as it treats everyone else. Being unborn is not the same as being born, however. The unborn don’t have any proxies to act on their behalf. I guess the guy dying of thirst is in a difficult position, but I bet the judge would be lenient and probably give the property owner an earful for being such a schmuck.

Also, it was not me that introduced the “bodily invasion” argument. That was Jlwright @ 56:  “The fetus, just like all of us who have already been born, isn’t entittled [sic] to make use of someone else’s body to stay alive without that other person’s consent.”

To apply rights/duties of those who “have already been born” to use Jlwright’s phrase, is nuts.

By muggers on 2013 05 17, 2:03 pm CDT

@98
I am truly curious.  Why is it nuts?  I think that it is fine to use that kind of characterization if everyone you are talking to agrees with you - e.g.,  “To say that that earth is flat is just nuts.”  However, if those you are talking to don’t agree, then it is reasonable for them to ask for more logical explanation of how you reached that conclusion. 

I had rather assumed that virtually everyone would find an argument that claimed that fetuses should have MORE rights than those who have been born to be “nuts”,  I thought that I was making an outlier argument - that fetuses should have the same rights as people who have been born - that would be attacked from the other side - that people would reject my proposition that we give fetuses equal rights of personhood because they believe that fetuses should have fewer rights than those who have been born.  Your response to that argument appears to be “Of course, fetuses should have more rights than other persons.  To argue otherwise is nuts.” 

Am I understanding you correctly?  If so, can you unpack why it is nuts to give to fetuses only the rights of persons under the law, and not more rights than other persons are entitled to?  It doesn’t go without saying, so could you please say more?

By jlwright1 on 2013 05 17, 2:18 pm CDT

Or why a fetus is entitled to ANY rights when other similar clusters of cells aren’t?

By Anonymous on 2013 05 17, 2:29 pm CDT

@97 Your first post makes a strong case against Obamacare, which I resent because I’m quite fond that particular Act that favors those who can’t pay for their own healthcare at the expense of those who, presumably, can.  Your rationale could also be applied to virtually all of our current social welfare programs.  Please stop your outrageous tea bagger screed against all programs that so many brave politicians and citizens so courageously fought for. 

@98 With respect, Muggers, the invective you continue to hurl here defies logic.  Regarding the violent protests of so-called “pro-lifers” at their annual parade, well, let’s just say your ignorance astounds me.  The very people you speak of are annually engaged in violence against women and their real aim is to generate funds to line their own pockets at the expense of women around the globe.

I, for one, am pleased at the progress we’ve achieved in this country.  However, I also believe that we should continue to advance the cause until children have no rights unless they are fit members of society.  The number of women whose lives are brought down into the mud because they are bankrupted by being forced to bear and rear children is staggering and must be stopped.

By Brick on 2013 05 17, 2:43 pm CDT

EsqinEsq @91: In saying that I want a theocracy, you are doing nothing more than repeating a lie of the political Left.  I seek to uphold the U.S. Constitution that begins with the phrase “We, the People . . .”.  You want to substitue the words “We, the Judges . . .” in that Preamble.  Abortion law is entirely judge made law consisting of striking down laws that were democratically adopted by the People of a state or the People’s elected representatives in a state.  So don’t talk about the country rejecting what I stand for.

By Phil Byler on 2013 05 17, 2:58 pm CDT

Is what follows difficult to understand?

If a woman is pregnant whether or not she goes to term is not my business, and not because I am in the minority of our species which has not been provided with a uterus. If I had one it would still not be my business unless I were the one whose uterus was in use. And that is the long and the short of it.

Having said which: being genuinely pro-choice means what it says; no woman forced into childbirth because abortion is unavailable - or into abortion because childbirth and child-rearing are not properly supported.

Gentlemen: we can’t do it for them. So let’s do what we can. Make ourselves useful at home. Stand up on public transportation. Offer help (discreetly) at work if there are heavy files or boxes to be moved.

Pregnant women: if a man does that please don’t treat him as being patronising. You might put him off doing it again.

By Andrew on 2013 05 17, 2:59 pm CDT

@102 - The problem is that “we the people” sat down limits on what even “we the people” could do.  And we created courts to do that.

Courts do sometimes strike down democratically-adopted laws when those laws impermissibly overreach into the business of others or otherwise invoke a power that the government lacks.

Yes, we are being hyperbolic when we talk about moving to a theocracy.  And yet, my honest feeling is that it isn’t hyperbolic by all that much.  I don’t think it’s a “lie of the political Left.”  I think there are a number of people in the absolute middle who still recognize that a substantial refrain of the right wing is to conform our laws with their idiosyncratic interpretation of one religion.  (And, moreover, when you get right down to it, it isn’t even anything you can find in their religion’s text!)

By Anonymous on 2013 05 17, 3:04 pm CDT

@103 Gotta love the folks who stick to code of chivalry, even if it’s just for a good laugh.  Perhaps you need to be reminded that women are EQUAL to men.  They don’t need you to stand up or carry things for them.  The implication - through your actions - is that women are weak.  Don’t do it.

As to your analysis of “choice,” you don’t take this nearly far enough (and after seeing your bitter cling to the old socio/religious chilvaric order, I can understand why).  Women should also be permitted to terminate AFTER birth.  A child cannot survive without the support of SOMEONE, and that “someone” is presumed to be the mother of the child.  Children cannot raise themselves.  It is the ONLY logical position that until a person is fully capable of sustaining their own lives without the support of others, their lives should be terminable.  I’m sure this offends your obviously Christian/papist non-sensibilities, but we can no longer go on as a society with this inbred, raised-by-wolves way of thinking.

By Brick on 2013 05 17, 3:22 pm CDT

Women are equal to men.  No one has suggested otherwise.

Please take his suggestion as charitably as it was meant and don’t react with such hostility.  Altruism demands that we give up our seat to any who need it worse than we do—pregnant women are simply a great example of such a typical person.

As a former gender studies instructor—what you’ve discussed there is not feminism.

By Anonymous on 2013 05 17, 3:27 pm CDT

Live births in the U.S. 2007—4.317 million
Abortions in the U.S. in 2007—1,210 (one thousand two hundred and ten)

“In 2011, Extreme poverty in the United States, meaning households living on less than $2 per day before government benefits, was double 1996 levels at 1.5 million households, including 2.8 million children.”  National Poverty Center February 2012 This would be roughly 1.2% of the US population in 2011, presuming a mean household size of 2.55 people.”

In 2013, child poverty reached record high levels, with 16.7 million children living in food insecure households, about 35% more than 2007 levels.[4] The number of people in the U.S. who are in poverty is approaching 1960s levels that led to the national War on Poverty.[5]”  excerpted from Wikipedia article “Poverty in the U.S.”

My purpose:  the same tired old arguments I’ve seen from both sides on this issue have not changed in 40 years.  The above issues are the real ones that must be addressed.  Plenty of babies get born, millions more than are aborted.  However, we cannot seem to take care of the children that are born every year.  Doesn’t the baby out of the womb and in poverty deserve as much, if not more, consideration and support than the one still in the womb?

By Boudicia on 2013 05 17, 3:44 pm CDT

@106 I apologize that you were offended.  Now, please explain to me how men giving up their seats for women does not imply that women are the weaker sex?  How is Andrew, above, not suggesting that women are the weaker sex by suggesting that men give up their seats to women without qualification?

Were you a “former gender studies instructor” at an evangelical bible college?  Because I have no idea where you’re coming from otherwise.  Your brand of “feminism” wouldn’t fly where I went to school.

By Brick on 2013 05 17, 3:44 pm CDT

@107 Boudicia, great stats.  Poverty is a terrible problem in this country.  All of that is changing, fortunately, under the current administration, of course, but there is so much more work that needs to be done to address the poverty of women, especially.  You lost me, though, when you said:

“We cannot seem to take care of the children that are born every year.  Doesn’t the baby out of the womb and in poverty deserve as much, if not more, consideration and support than the one still in the womb?” 

How does that follow?  What exactly is the difference between a child inside the womb and a child outside of the womb?  That’s the big question.  I will agree with the anti-choice crowd insofar as I do not believe there is a rational distinction between a “fetus” inside the womb and a “baby” outside the womb.  The burden to the mother and/or society is no different, either way, and that’s really what this is about - the rights of women.  If you are for aborting a “baby” (as you call it) inside the womb for the sake of reducing poverty, please, to avoid further intellectual embarrassment, take the next logical step.

By Brick on 2013 05 17, 3:55 pm CDT

@100: “Or why a fetus is entitled to ANY rights when other similar clusters of cells aren’t?”

Houston doctor Douglas Karpen is accused by four former employees of delivering live fetuses during third-trimester abortions and killing them by either snipping their spinal cord, stabbing a surgical instrument into their heads or ‘twisting their heads off their necks with his own bare hands’.

‘Sometimes he couldn’t get the fetus out… he would yank pieces – piece by piece – when they were oversize,’ Edge explained.


‘And I’m talking about the whole floor dirty. I’m talking about me drenched in blood.’


http://www.dailymail.co.uk/news/article-2325786/Douglas-Karpen-Second-house-horrors-abortion-clinic-investigated-Texas.html

By Marc on 2013 05 17, 3:57 pm CDT

@107: “Doesn’t the baby out of the womb and in poverty deserve as much, if not more, consideration and support than the one still in the womb?”

Why?

By Marc on 2013 05 17, 3:59 pm CDT

I’m not going to get into this any further than one post, but you need to take a good solid look at how are you reacting.  And how insulting you’re becoming to someone who has, at many points in his life, been the only male volunteer for groups caring for abused women or organizing conferences for female writers.  I care a lot about gender equality and the critical study of gendered issues. 

This isn’t the face that feminism has to wear, and it isn’t feminism’s real face.  It’s a shallow understanding that is reactionary and spiteful.  You don’t empower women by attacking men for displays of kindness.  You can’t empower women by adopting the tactics of hegemonic patriarchy. 

And you know what?  Even if it did show gender bias, I would be ok with it in this instance.  I’m willing to be a little bit sexist and give a pregnant woman the opportunity to take my seat.  No, pregnancy isn’t a disease, and no women aren’t weak.  But we celebrate pregnancy and life-giving, and part of that celebration is, for me, honoring them by giving up our seats to them.  Both men and women should do so.  So if you’re going to fault Andrew, fault him for not pointing out that men AND women should do so.  But don’t viciously attack him for a simple error.  You do yourself and feminism a terrible disservice by doing so.

I believe that the Golden Rule is not gendered.  My sister is pregnant, and I would want anyone, male or female to make the rude assumption and offer her a seat whether she needed it or not.  Therefore, I will do the same.

By Anonymous on 2013 05 17, 4:01 pm CDT

Brick @105: Either you are being absurd to show the immorality of abortion, or you are demonstrating the evil of the Political Left in its embrace of abortion.

By Phil Byler on 2013 05 17, 4:07 pm CDT

Anonymous @104: The defect to your argument is that “We, the People. . .” did not agree to judges using general phrases of the Constitution—“due proces of law” and “equal protection fo the laws”—to empower judges to engage in substantive decision-making so as to strike down laws passed by states in their democratic processes.  You are reading your personal moral views into the Constitution, and that is illegitimate.  The Founding Fathers and the Civil War generation would have been astonished and horrified by what passes as constitutional decison-making today.

By Phil Byler on 2013 05 17, 4:12 pm CDT

@114 - Doubtful.  Have you read the Convention Notes?  At several points, they explicitly state that they don’t know what they’ve just written means, but they’re sure that future generations will decide.

Again, if you think it’s that much against the will of the people, amend the Constitution.  That’s your right.  And if you can’t do it, maybe you don’t have the groundswell of opinion that you seem to think you do.

By Anonymous on 2013 05 17, 4:14 pm CDT

Comment removed by moderator.

By Brick on 2013 05 17, 4:20 pm CDT

@115 What have I said that is absurd?  Does the “Political Left” frighten you, Phil Byler?  Better go get your holy water and shroud of Turin blankie.

I have said nothing that isn’t true regarding the abortion debate.  Please, anyone, show me a flaw in my logic so far.  Please, I’m begging you.

By Brick on 2013 05 17, 4:29 pm CDT

Altruism and compassion are not limited to one religion or one set of beliefs.  I would offer a seat to any person that I had objective reason to believe needed it more than I did.  Human kindness is not chauvinist chivalry. 

Feminism is about deconstructing caricatures.  Not becoming one.

By Anonymous on 2013 05 17, 4:56 pm CDT

Anonymous @114; Actually, I have read the Convention Notes.  I am sure that they Founding Fathers generation as well as the Civil War generation would tell you that while the precise contours of what they agreed to would be defined in future generations, that the contention that due process of law and equal protection of the laws invalidate state laws punishing sodomy and regulating abortion to be utterly ridiculous.

By Phil Byler on 2013 05 17, 5:04 pm CDT

Brick @ 115: What logic?  Your assertions are based on a denial of the intrinsic worth of the individual, a premise of the political Left for centuries.  That you don’t recognize the absurdity and immorality of your comment is a reflection of the moral and intellectual bankruptcy of the political Left.  No, the political Left does not frighten me. It does, however, cause me to make clear to people that the political Left must be repeatedly defeated.

By Phil Byler on 2013 05 17, 5:09 pm CDT

Comment removed by moderator.

By Brick on 2013 05 17, 5:29 pm CDT

Wow.  I am none of those things. 

I probably share most of your political opinions, but I would never talk to people like dogs the way you do.

You have become what you are fighting against.  I’m done here.

By Anonymous on 2013 05 17, 5:34 pm CDT

Chivalry is off-topic. Please return to the topic of the article.

Lee Rawles
Web Producer
ABAJournal.com

By Lee Rawles on 2013 05 17, 5:48 pm CDT

I agree with the general sense of Justice Ginsburg’s comment, that Roe was too sweeping, that it overreached what the Supreme Court had a reasonable charter to decide, and has prevented an evolution in public opinion and the law through democratic processes that would have prevented abortion from being a divisive national political issue.  If the Court had ruled that total unconditional bans on abortion were unacceptable because they deprived women of a fundamental freedom to control their own lives in difficult circumstances, including rape or incest or severely disable fetus, and allowed states to define the circumstances and their own balancing tests, the political energy would have gone into state legislatures, instead of being bottled up and directed at the Court. 

It is not the Constitutional assignment of the Supreme Court to resolve controversial issues on which there is no clear legal consensus expressed within the borad terms of the Constitution.  That is the job of Congress and legislatures, as an exercise in democratic self-government.  Advocates are not unduly disadvantaged when they are required to persuade other people to agrtee with them, instead of using government power to ram a law down their throats without agreement. 

The example usually cited of the need for social reformation by the Supreme Court is Brown v. Board of Education.  But that was a straightforward application of the plain language of the 14th amendment, in which the Court was overturning the bad rulings it had made for over 50 years which had defied the requirement for equality under the law despite racial differences.  Instead of renouncing the Court’s precedents as a betrayal of the Constitution, the Court took the pose of an enlightened moral arbiter, and dictated its decision as if from God, rather than from the repentant sinner it was.  The conclusion that racially separate schools were inherently unequal was rationalized by a sociological study of the lack of material equality in black schools.  But when the Court initially adopted the motto “separate but equal”, it was being dishonest.  When one part of society gets to tell another part of society that it cannot attend a white school, ride in the front of a bus, or eat in a white restaurant, the promulgation of such segregation and discrimination is an exercise in inequality per se.  Such practices should have been struck down, but the Court during the first half of the 20th Century was inhabited by several racists. 

Just as the courage of black soldiers for the Union in the Civil war fueled the passage of the 13th, 14th and 15th Amendments, the service of blacks and Japanese Americans and American Indians during World War II fueled the fight to achieve equality under the law that recognized the patriotic sacrifice of racial minorities.

By Raymond Takashi Swenson on 2013 05 17, 8:08 pm CDT

Raymond @124 said “If the Court had ruled that total unconditional bans on abortion were unacceptable because they deprived women of a fundamental freedom to control their own lives in difficult circumstances, including rape or incest or severely disable[d] fetus.”

Then he goes on to say, “It is not the Constitutional assignment of the Supreme Court to resolve controversial issues on which there is no clear legal consensus expressed within the [broad] terms of the Constitution.”

Raymond, please note your contradiction and choose which path you want to Supreme Court to wander down.  P.S. You can’t choose both as you did in your recent post.

Do you believe, as I do, that women should be allowed to choose in “difficult circumstances” post-birth?  It is only logical, yet I see many a limp wrist out there who champions abortion only up to a certain point even though “difficult circumstances” often occur postpartum.  Am I the last logical mind on the forum?

By Brick on 2013 05 17, 10:55 pm CDT

It may well be that Justice Ginsberg feels that society’s position on abortion had not evolved enough before the Court decided Roe v Wade. The decision caught much of America off guard, but when one considers the progress made during the Women’s Movement, The Court’s decision in Roe may not seem such a reach. If anything the Court sent out a strong message to state legislative bodies about unconditional bans on abortion.  The Court may have underestimated the furor caused by it’s decision, but the Supreme Court is not a court of public opinion.

Social evolution is quite unlike other evolutionary processes. Suppose a humanoid walking through the East African Savannah millions of years ago came upon a Porsche 911 with the key in the ignition & the engine running. It would take millions of years of progress before she could actually use the car. Invention of the wheel. Internal combustion engine. Roads. etc, etc.

Congress passed the 13th Amendment in 1865 but the Court did get to Brown v Board of Education until 1954,
A great deal of EVOLUTION took place in the intervening years.

Americans value their right to be heard and legislators from Henry Hyde down heard the opponents of abortion. Unlike many other debates the abortion debate does not have a Pro Abortion side. I write this from a country which has taken positions on abortion & family planning that Americans would never accept. No one is for abortion, but the Court wanted legislatures to consider the rights of a woman over her own body. Almost a hundred years passed between the 13th Amendment and Brown. The clock on Roe has just started ticking

Roland Nicholson, Jr.
Xian, People’s Republic of China

By Roland Nicholson, Jr. on 2013 05 21, 11:32 am CDT

Roland @126: While I admire your understanding that there is a value in the democratic process that Roe v. Wade short circuited (which it did), may I suggest that you contemplate the possibility that social evolution and progress do NOT lead to an essentialy unrestricted right to abortion, but rather to its traditional restriction, and that the US Supreme Court abortion law prevents the People from enacting what is in fact more progressive legislation in restricting abortion.  The American public has been moving more and more to a pro life view beause of, among other things, seeing sonograms and 3D images of unborn children and then insisting on plain language being spoken about the subject of abortion. 

Also, the Founding Fathers and the Civil War generation really would have understood the Brown v. Board of Education ruling if it were presented to them.  Not so Roe v. Wade.

By Phil Byler on 2013 05 21, 3:25 pm CDT

@127 - “The American public has been moving more and more to a pro life view…”

You are incorrect as a matter of fact. Almost the exact same proportion of people favor legal abortions now as did 40 years ago.

By NoleLaw on 2013 05 21, 3:35 pm CDT

Assuming that by “pro-life view” you mean in favor of outlawing abortion. Considering your tendency to liberally redefine terms to match your posts, it’s not completely clear in what sense you are using the term.

By NoleLaw on 2013 05 21, 3:39 pm CDT

Through my Ouija board, actually the Founders tell me they would have understood, even if they didn’t personally agree with abortion.  Maybe you should go contact them and try to clear it up. 

(What do you use?  A seance?  A medium?  Maybe you get better reception than I do.  I find that it’s easiest to contact them under the full moon, especially on Tuesdays.  I also notice that when I’ve had a little to drink, they tend to always say that they agree with my political opinions too!  I hope they aren’t just both telling us what we want to hear…)

You know, on that subject, I also note that people tend to believe that “social evolution and progress” lead to their own opinion on how society should work.  Yours does, mine does, his does.  I mean, that’s just definitionally true—no one would call it progress if it didn’t go towards his or her version of a perfect world.

Our definitions of a perfect world are just… different.  And I don’t think we have to insult each other or blame it on a lack of education.  Two individuals with the same information who are equally reasonable and moral creatures can disagree on this issue.  Nobody *likes* abortion.  But I believe there are other, more effective ways of lowering abortion statistics than an outright ban.  Historically, those bans A) have not stopped abortions from happening, B) have only caused them to happen unsafely, and C) have only stopped low income persons from obtaining them, because wealthy and middle class (at the time, usually white) women simply went abroad to have the procedure done safely.  That’s just historical fact.  Faced with that, many of us—and reasonably, I think—want a position in the middle.  And I think, over time, we’ve come close to that.  But no one will ever agree on where it should be.

By Anonymous on 2013 05 21, 3:40 pm CDT

Nole Law @ 128 and 129:  I am correct as to the viewpoint of the American people. I realize that those who favor broad abortion rights are trying to hide from the truth in many ways.

Anonymous @ 130: The difference between you and me is not our respective views of what constitutes a “perfect world.”  The difference is that you apparently believe in some kind of socialist utopia and I believe in the ancient tragic view of man, which means that I don’t believe that man can ever achieve utopia—just make things a little better or worse, that beneath the veneer of civilization, man can be a destructive beast, and that there are universal moral standards.  Mankind’s experience in the 20th century should have caused people to forget about attempting to construct a socialist utopia, seeing how Hitler’s Gernam National Socialism, Stalin’s Bolshevk Communist Socialism, Mao’s peasant Chiese Communist Socialism, Pol Pot’s genoicidal agrarian communism all resulted in mass murder.  But the political Left has only doubled its efforts to make us ignorant and enslave us.
   
As for what the Founding Fathers believed and how they would react to present day issues given those beliefs, if you had a real ediucation, you would know yourself.  My sincere wish for you is that you launch yourself into reading and understanding the Classics, reading and understanding all kinds of history but particularly American history, reading and understanding the writings of Washington, Jeffeson, Madison, Adams, JQ Admas, and Lincoln, reading and understanding political works such as the Federalist Papers and those by de Tocquevile and Burke, reading and nderstanding economic theory that includes Hayek and von Mises.

By Phil Byler on 2013 05 21, 4:18 pm CDT

I have a great many things that I could suggest you read in an effort to try to elevate myself above you, but my ego is apparently not as frail as yours.  Again, I am as educated as yourself.  The mere fact that I disagree with your conclusions is not evidence otherwise. 

I hereby invoke Godwin’s Law based upon your invocation of Nazism.  You lose.

@Nole—Do we add this guy to the “do not feed the trolls” pact?

By Anonymous on 2013 05 21, 4:26 pm CDT

@131: Actually, no, you are not.  That is a matter of empirical data, and here is a source showing that American attitudes towards abortion have not shifted significantly in decades:

http://www.gallup.com/poll/1576/abortion.aspx

By EsqinAustin on 2013 05 21, 4:27 pm CDT

EsqinAustin @133: No, I am not, unless you mean that American attitudes toward abortion have shifted back to where they were before Roe v. Wade.  I was referring to more recent trends.  There was a move for a time to a more favorable view toward abortion compared to what was the case before Roe v. Wade.  But that has changed and changed back to a more traditional attitude.  To suggest, as I understood you and NoleLaw to be, that attitudes toward abortion have not changed over time is not correct.

By Phil Byler on 2013 05 21, 4:55 pm CDT

Then prove it?

By Anonymous on 2013 05 21, 5:07 pm CDT

Anonymous @132:  Excuse me, “Goodwin’s lLaw” is not applicable here.  I was not calling you a Nazi.  My reference to German Natinal Socialism was in the context of listing various forms of socialism, and German National Socialism was a form of socialism. Read the Nazi Party platform; it was a socialist document. Read Richard Overy’s Wolfsom Prize winiing “The Dictators” comparing Stalin and Hitler and showing there was much the same in the essentials.  My point was that socialism in its various manifestations over time has been, historically, not just a failure but a murderous failure.

Anonymous, if you were as educated as me, your posts would reflect it. They don’t. 

Finally, this is an American Bar Association site.  That you and NoleLaw would try to consider me a troll is hysterically funny.  You two just can’t deal intellectually with reasoned conservatism.  To my reasoned and learned posts, you cry false and biased, but then have no substance to back you up.  But in a sense, I am not surprised.  Members of the the political Left have to insulate themselves from the truth and from reason.

By Phil Byler on 2013 05 21, 5:10 pm CDT

No, I called you a troll because you are saying obviously untrue and unprovable, provocative things just to get a reaction.

By Anonymous on 2013 05 21, 5:14 pm CDT

@132 - Clearly. I already chose to ignore this troll, but attempted to indulge myself by pointing out an objective fact that contrasted directly with a claim he put forth. Anyone who ignores overwhelming empirical evidence and reasserts an opposite contention as true, who is shown that state control over means of production is unchanged since the 80s and nevertheless asserts we are moving towards socialism, who lumps socialism in the same ideological classification as Nazism, who’s only legal arguments are “I’m right” or “the founding fathers agree with me”, is not interested in discussing legal issues. A rebuttable presumption of trolling is appropriate. Any feeding of such a troll only takes away from true and legitimate *legal* discourse(including contentious a diverse views, yet nevertheless based on legal arguments), which, as we saw in other threads, can happen and is refreshing.

Pacta sunt servanda.

By NoleLaw on 2013 05 21, 5:41 pm CDT

“state control over means of production is unchanged since the 80s”.

Your statement above seems to ignores Obamacare (and the new taxes to pay for it), the US as largest shareholder of GM, Wall Street bail outs (federal backing), monetary easing (courtesy of the US taxpayer and savers), the federal deficit (ditto).

By CT Lawyer on 2013 05 22, 8:45 am CDT

@139 - It is based on World Bank figures, which I will take over your conjecture any day.

By NoleLaw on 2013 05 22, 8:47 am CDT

Don’t you spout legitimate factual analysis at them!

By Anonymous on 2013 05 22, 8:51 am CDT

Anonymous @ 137 and NoleLaw @138: What I have written has been reasoned and based on fact and history.  You two just can’t deal with it.  So you posture.  How pathetic.

By Phil Byler on 2013 05 22, 9:00 am CDT

[Citation needed.]

By Anonymous on 2013 05 22, 9:17 am CDT

Just a question and I’ll try not to be reactionary or unkind:  Does the ABA have any specific group or section for pro-life lawyers?  I’d be interested to know.  Thanks to all.

By chattlawyer on 2013 05 22, 11:13 am CDT

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