For Those Concerned About Roe v. Wade Being Overturned ... [From 2012]
From 2012
For those concerned about Roe v. Wade being over-turned, take a deep breath, and think. Reading Roe/Doe1 *1973 would help, too.
Roe was written by a Republican (Nixon) appointment (Blackmun). Planned Parenthood v. Casey, which upheld Roe, though ditched Roe's original reasoning, was written by a Republican (Reagan) appointment.
[Sometime in your life, you need to read Justice Ruth B. Ginsburg's Madison Lecture called "Speaking in a Judicial Voice" at NYU published in NYU Law Rev 67 (Dec 1992)2, where she basically admits the "privacy" thing Roe was based on was just implausibly and mistakenly applied to abortion, if not made up, and the sweeping nature of the principle probably was what created the Pro-life movement. In other words, had Roe not been so poorly reasoned, the Pro-life movement liberals are so concerned about would not even exist. The the whole thing is interesting and worth reading, but I'll here cite p. 1207, n. 139, for instance, and yes I did read it all with my own beady little eyes. I agree with her on that point].
In those opinions, but especially the 1973 ones (Roe and Doe), provisions of Texas and Georgia state law were declared unconstitutional. In other states, abortion was already legal with differing restrictions. Prior to Roe in Texas, it was legal in case the mother's physical safety required it.
So, overturning Roe would return the issue to a police power of the states -- the historic power states have had to regulate public morality, public health, and the like. Overturning Roe would not ban abortion federally in all states. *(this is like, really basic stuff here). In fact, in agreement with Ruth Bader Ginsburg (I can't believe I just said that), it would get the legislatures into the conversation on abortion legislation, instead of allowing the Supreme Court to be the a national legislature (with 9 unelected members -- all of whom were male, by the way, in 1973). Think !
Roe and Casey were so poorly reasoned, so pathetically attached to any plausible Constitutional provision or principle, that they produced a reaction among pro-choice scholars almost immediately. See John Hart Ely's "The Wages of Crying Wolf," in Yale Law Journal, 1973.3
Another example is Mary Ann Warren's postscript on infanticide, published a couple years later, where she claims that her argument supports the assertion that all 50 states are wrong: "infanticide isn't murder." (Mull that one over).
[Photo 1: the citation for the Postscript on Infanticide by Mary Ann Warren, where she says all 50 states are wrong — “infanticide isn’t murder.” She says this is “obviously follows” from her pro-choice argument for abortion. See Photo 2].
Every educated pro-choice advocate needs to read these things. Otherwise, you just sound, I'm sorry, like you're going on feelings rather than being clued in on what has been and is really going on here. When I teach this stuff, it's inevitable that pro-choicers get a bit agitated, but it's mainly due to the fact that the pro-choice movement doesn't even make known its own arguments on the street. I have to be the bearer of the horribly bad news that pro choice arguments, well, have a whole lot to be embarrassed about.
[Photo 2: Postscript on Infanticide by Mary Ann Warren, 1975, citation in Photo 1].
On the other hand, keep in mind that when Republicans are angry with the reasoning of Roe, they are taking on their fellow Republicans. Hello? They are in agreement with pro-choice Ely and Ginsburg, cited above (politics makes such strange bedfellows). Judicial fallacious activism is the problem, here, on this issue.
A broader lesson is that the U.S. Supreme Court needs to take our Constitution more seriously, but the voters are the ultimate guarantors of that. If voters are ignorant of the Constitution or the decisions or LOGIC, then they can't perform this vital function. Government -- including courts -- is ultimate accountable to the electorate (who currently are deprived of this stuff in schools, which are run by liberal Democrats), and people are accountable to each other, and to God, if such God exists, discerned by reason and revelation. *(If God does not exist, we are ultimately accountable to no one but each other, if that -- See Duke Law Journal, Dec 1979, "Unspeakable Ethics, Unnatural Law," by Arthur Allen Leff).4
This election, on abortion, the electorate may not be sitting by and accepting poorly reasoned decisions of the past. The separation of powers and checks and balances created by our Constitution allows and in fact encourages these kind of battles between the branches, with the electorate in charge.
When the Court steps out of line, it can be and needs to be yanked back in line, just like we do when the president and Congress step out of line. There are Constitutional ways to do that.
Amendments are one way to go -- but they require a huge amount of support -- they will require many pro-choicers to come over to the Light side, which will hurt their eyes, because they’re so used to the moral and jurisprudential dark dungeon of Choice-slogans. Impeachment is another way to go. It also requires a large consensus.
This is appropriate. Pro-choicers should be just as concerned about fallacious judicial reasoning every bit as much as Pro-lifers. Many are, thankfully. Many have been persuaded already. Every semester, I have several, sometimes dozens go from Choice slogans to embrace Life arguments -- and I never see the opposite. History is on the side of Life.
Let's let ambition counteract ambition, as Madison said in Federalist 51.5 Here's the full quote defending the separation of powers:
"Ambition must be made to counteract ambition. The interest of the [wo]man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."
[Photo 3: I highly, highly recommend this scholarly comparison of Dred Scott v. Sanford (1856/7) with Roe v. Wade / Doe v. Bolton (1973).
Copyright Lucas J. Mather, 2012
All Rights Reserved
Originally Published to Facebook Friday 24 August 2012 at 3:11 pm
Doe v. Bolton, 410 U.S/ 179 (1973) is the lesser known, but arguably more important decision. Full text available here: https://scholar.google.com/scholar_case?case=11713857759343795310&q=doe+v.+bolton&hl=en&as_sdt=2003
Roe v. Wade, 410 U.S. 113 (1973) is available here: https://scholar.google.com/scholar_case?case=12334123945835207673&q=Roe+v.+wade&hl=en&as_sdt=2003
Full text available here: https://www.law.nyu.edu/sites/default/files/ECM_PRO_059254.pdf
Full text is available here: https://openyls.law.yale.edu/bitstream/handle/20.500.13051/3571/82YaleLJ920.pdf?sequence=2&isAllowed=y
Full text is available here: https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2724&context=dlj
The best edition of The Federalist in my opinion is the Signet Classic, edited originally by Clinton Rossiter, but most recently edited and intro’d by my Ph.D.-level Federalist professor, Dr. Charles R. Kesler, Ph.D., who was a guest on The Republican Professor Podcast here: https://www.therepublicanprofessor.com/2022/06/21/ep-60-whats-wrong-with-conservativism-dr-charles-r-kesler-ph-d-editor-claremont-review-of-books-distinguished-professor-at-claremont-mckenna-college-calif/